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holding that "the waiver of his right to a jury trial on his prior conviction encompassed his right to a jury determination of whether his current offense was a serious felony"
Summary of this case from Gadlin v. CateOpinion
No. C047855.
May 31, 2006. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II through V of the Discussion.
Appeal from the Superior Court of Modoc County, No. F03440, Larry L. Dier, Judge.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant Robert Dwayne Arnett was found guilty by a jury of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) — count 1) and battery with serious bodily injury (§ 243, subd. (d) — count 2). In a bifurcated proceeding, the trial court found defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subd. (b)) and a prior serious felony conviction (§ 667, subd. (a)(1)). Probation was denied and defendant was sentenced to serve 13 years in state prison, consisting of a four-year upper term for violation of section 243, subdivision (d), doubled based on defendant's prior strike conviction (§ 667, subd. (e)(1)), plus five years for the prior serious felony enhancement (§ 667, subd. (a)). An eight-year term on the remaining count was stayed pursuant to section 654.
Undesignated statutory references are to the Penal Code.
Defendant appeals, raising numerous claims. Finding none of these meritorious, we shall affirm.
FACTUAL BACKGROUND
The victim, John Walton, had been acquainted with defendant for 20 years. Walton's niece Victoria lived upstairs in the same apartment complex as defendant's girlfriend/fianceé, A.G. Defendant lived there with A.G., her two children (seven-year-old F.H. and 11-year-old B.H.) and his son (11-year-old S.A.).
Victoria asked Walton to come over and talk to defendant, who was depressed because he thought he found A.G. with another man. Walton agreed and went to A.G.'s apartment to talk to defendant, where he found him lying on a bed and unresponsive. According to A.G., defendant had been drinking "[a]ll day."
Walton, A.G. and another friend, Marlin, went upstairs to Victoria's apartment, where they "had plenty of beer." Walton acknowledged drinking 12 beers that day.
Three hours later, the children knocked on Victoria's door and said they wanted to see their mom. Victoria looked away and defendant came in right after them. A.G.'s son F.H. testified that, before going upstairs, defendant said he was going to beat up Marlin if he was there with A.G. (although Marlin was not the man defendant thought she had been with). According to A.G.'s son B.H., he thought defendant was going to "caus[e] trouble" because defendant was drunk, so he locked the door to try to keep him from going upstairs.
When defendant entered Victoria's apartment, Walton was sitting on the floor and said "hi." Defendant ignored him and said to Marlin, "What are you doing being up here, drinking with that white boy [referring to Walton]? He said he was going to shoot you." B.H. testified that, in making this remark, defendant also referred to Walton as a "mother-effer" (but that defendant "actually used the real words").
Several of the witnesses noted defendant was angry when he came upstairs. Walton and Victoria testified that defendant came into Victoria's apartment and was moving around quickly, and according to Victoria, was "yelling and screaming" at A.G., Walton and Marlin. This quickly escalated into a situation where two of the boys tried to restrain defendant either just prior to his entering the apartment or once he was inside. The result was that defendant kicked Walton directly in the face causing severe head injuries. Victoria called 911, and Walton, who was bleeding profusely, was transported to the hospital for treatment.
The descriptions by the witnesses varied as to how Walton got kicked by defendant:
According to Walton and Victoria, some of the children who were present tried to push or pull defendant back to prevent him from getting into the apartment, but defendant swept the children back with his arm. Defendant's son S.A. was saying, "No, Daddy. No, Daddy. No, Dad."
Victoria testified that, when defendant pushed the children back, he "reared up his right leg" "like he was going to kick a football" and kicked Walton "right square in the face." Walton, who had been a Marine, said he knew defendant "was going to come up on [him]," but he did not think defendant would hurt him. However, "[i]t happened in a flash" and Walton, who sustained a broken nose and a concussion, insisted that defendant kicked him intentionally because he "just kind of snapped."
According to the three boys, defendant kicked Walton accidentally. F.H. testified that B.H. and S.A. had grabbed defendant's legs to prevent him from entering the apartment, which caused defendant to trip over a box and accidentally kick Walton. S.A. said defendant stumbled backwards over a box and kicked Walton and that he and B.H. were pushing defendant from the side. B.H. also testified to this and added that he had put the box behind defendant.
Defendant was very agitated and displayed symptoms of intoxication when police officers arrived. Initially, he was uncooperative, refusing to sit down when instructed to by one of the officers. Defendant told the police he accidentally kicked Walton when he lost his balance after his son bumped him. When one of the officers asked defendant to sit down so the officer could talk to Walton, defendant responded, "I already told you what happened." After investigating the incident, officers arrested defendant.
In addition to the broken nose and concussion, Walton continued to suffer neck pain and short-term memory problems at the time of trial, over two months later.
DISCUSSION I. Serious Prior Felony Enhancement
Defendant argues that imposition of the five-year enhancement under section 667, subdivision (a)(1), was unauthorized because the jury did not make a factual finding that his current offense was a serious felony. We disagree.
Pursuant to section 667, subdivision (a)(1), a five-year sentence enhancement applies when a defendant is convicted of a serious felony as defined in section 1192.7, subdivision (c), and has a previous serious felony conviction. When a defendant's current offense is not listed specifically in section 1192.7, subdivision (c), whether that offense is a serious felony is an issue for the trier of fact. ( People v. Bautista (2005) 125 Cal.App.4th 646, 655 [ 22 Cal.Rptr.3d 845]; People v. Taylor (2004) 118 Cal.App.4th 11, 27 [ 12 Cal.Rptr.3d 693] ( Taylor.))
Under section 1192.7, subdivision (c)(8), an offense is a serious felony if, in committing the offense, the defendant personally inflicts great bodily injury on a person other than an accomplice. Numerous courts have recognized that "[t]he terms 'serious bodily injury' and 'great bodily injury' have substantially the same meaning." ( People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375 [ 19 Cal.Rptr.2d 434] ( Hawkins I); see, e.g., People v. Burroughs (1984) 35 Cal.3d 824, 831 [ 201 Cal.Rptr. 319, 678 P.2d 894]; People v. Chaffer (2003) 111 Cal.App.4th 1037, 1042 [ 4 Cal.Rptr.3d 441]; People v. Hawkins (2003) 108 Cal.App.4th 527, 531 [ 133 Cal.Rptr.2d 548] ( Hawkins II); People v. Beltran (2000) 82 Cal.App.4th 693, 696-697 [ 98 Cal.Rptr.2d 730]; People v. Kent (1979) 96 Cal.App.3d 130, 136 [158 Cal.Rptr. 35].) In fact, great bodily injury has been held to be "an element of battery under section 243, subdivision (d)" ( Hawkins I, supra, 15 Cal.App.4th at p. 1375), including for purposes of establishing the enhancement contained in section 667, subdivision (a) ( People v. Moore (1992) 10 Cal.App.4th 1868, 1871 [ 13 Cal.Rptr.2d 713]).
Here, before the presentation of evidence commenced, defendant waived trial by jury on "the issues of the priors," agreeing that the court would be the trier of fact concerning the prior allegations. Contrary to defendant's claim on appeal, the waiver of his right to a jury trial on his prior conviction encompassed his right to a jury determination of whether his current offense was a serious felony for purposes of section 667, subdivision (a). ( People v. Yarbrough (1997) 57 Cal.App.4th 469, 477-478 [ 67 Cal.Rptr.2d 227] ( Yarbrough) [waiver of right to jury trial on "'prior conviction'" includes issue of whether or not current offense is a serious felony], citing People v. Equarte (1986) 42 Cal.3d 456, 467 [ 229 Cal.Rptr. 116, 722 P.2d 890]; cf. Taylor, supra, 118 Cal.App.4th at p. 27, fn. 6 [jury trial on whether current offense is serious felony held not waived when defendant waived jury trial on "prior conviction" while jury deliberating on charged offenses, including great bodily injury enhancement].) Defendant's reliance on Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435, 120 S.Ct. 2348] and Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403, 124 S.Ct. 2531] is misplaced, as the right established by those cases — to have a jury determine "'any fact that increases the penalty for a crime beyond the prescribed statutory maximum'" ( Blakely, at p. 301 [ 159 L.Ed.2d at p. 412], quoting Apprendi, at p. 490 [ 147 L.Ed.2d at p. 455]) — was waived by defendant as to his prior conviction. There is nothing in the language of Apprendi or Blakely to prevent a defendant from waiving this right.
Nonetheless, defendant contends the trial court was not authorized to make a finding that his current offense was a serious felony because the jury did not reach a verdict on an enhancement allegation that he personally inflicted great bodily injury pursuant to section 12022.7, which was alleged as to the section 245, subdivision (a)(1) charge. As infliction of great bodily injury was apparently the basis for finding that defendant's current offense was a serious felony for purposes of section 1192.7, subdivision (c), a valid finding in this regard was required in order to impose the enhancement under section 667, subdivision (a).
Although the jury returned a verdict form to the court, finding this enhancement true, one of the jurors indicated this was not his verdict during a polling of the jury, and the parties stipulated to dismissal of this enhancement.
An offense is also a serious felony for purposes of section 667, subdivision (a), if, in its commission, the defendant personally used a dangerous or deadly weapon. (§ 1192.7, subd. (c)(23).) Although the first amended information alleged that defendant assaulted Walton both with force likely to produce great bodily injury and with a deadly weapon, "to wit, boots," the jury was instructed and received a verdict form only as to assault with force likely to produce great bodily injury. There is nothing in the record on appeal to suggest the trial court found defendant's current offense to be a serious felony based on a finding that he used a deadly weapon.
Defendant relies principally on Taylor, supra, 118 Cal.App.4th 11, for this contention. In Taylor, a jury returned verdicts finding three great bodily injury enhancements alleged against the defendant not true. ( Id. at pp. 17-18.) Nonetheless, the trial court found the defendant's conviction for battery with serious bodily injury (§ 243, subd. (d)) was a serious felony for purposes of the enhancement under section 667, subdivision (a)(1). ( 118 Cal.App.4th at p. 22.) Division One of the Court of Appeal for the Fourth Appellate District held that the trial court was precluded from finding the defendant's current offenses were serious felonies based on the infliction of great bodily injury when the jury had made express findings to the contrary. ( Id. at pp. 19-20.) Acknowledging that "serious bodily injury" and "great bodily injury" have been viewed by courts as having "'substantially the same meaning,'" the appellate court nonetheless concluded that the jury's finding of serious bodily injury could not be deemed the equivalent of a finding of great bodily injury based on the particular circumstances of the case. ( Id. at pp. 24, 25.) These circumstances included the nature of the victim's injuries (which included a small facial bone fracture that would heal on its own); the jury instructions containing different definitions for the two terms; the arguments of counsel implying a distinction between great bodily injury and serious bodily injury; and the jury's question during deliberations regarding whether a simple bone fracture could constitute great bodily injury. ( Ibid.) The appellate court concluded that, under such circumstances, the trial court was not at liberty to make a legal determination contrary to the jury's factual finding. ( Id. at p. 27.)
Taylor is readily distinguishable from the present matter. Here, the jury did not make a determination on the great bodily injury enhancement and defendant waived jury trial on the issue for purposes of the serious prior felony enhancement. Thus, the trial court did not "substitute its own . . . legal determination for the express factual findings of the jury" ( Taylor, supra, 118 Cal.App.4th at p. 30) and the narrow ruling of Taylor does not apply. As recognized by the court in Taylor, "In the absence of any contrary indication in the record, the trial court . . . [i]s justified in applying the usual assumption that 'great bodily injury' and 'serious bodily injury' are 'essentially equivalent.'" ( Id. at p. 26.)
Defendant also claims that, by stipulating that the great bodily injury enhancement would not apply to count two (the charge of battery with serious bodily injury) and agreeing to dismiss the enhancement after the jury was polled, "the prosecutor prevented the jury and the court from making a finding that [defendant] inflicted great bodily injury in the course of committing battery." (Italics omitted.) However, in addition to the great bodily injury enhancement under section 12022.7, the first amended information alleged that the violation of section 243, subdivision (d), was a serious felony, and the prosecutor did not dismiss this allegation or the enhancement under section 667, subdivision (a)(1). Thus, the issue of whether defendant's current offense was a serious felony was not removed from the trier of fact. Furthermore, the fact that the prosecutor stipulated that the great bodily injury enhancement did not apply to the violation of section 243, subdivision (d), is of no significance with regard to whether that offense was a serious felony, as sentencing on both allegations ordinarily is precluded by the fact that the enhancement is considered an element of the offense. ( Hawkins I, supra, 15 Cal.App.4th at pp. 1374, 1375; cf. People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550 [ 235 Cal.Rptr. 108] [the defendant could be sentenced for assault with serious bodily injury and enhancement for inflicting great bodily injury if part of plea bargain].)
And defendant's claim rings hollow that he did not intend to waive his right to a jury determination on whether the current offense was a serious felony, as he made no objection at the time of sentencing to the trial court making this determination. We find the circumstances here similar to those in Yarbrough, supra, 57 Cal.App.4th 469, in which the prosecutor struck a great bodily injury allegation during voir dire because she mistakenly believed it was alleged as an enhancement rather than as the factual basis for alleging that the current offense was a serious felony. The defendant in that case, as here, claimed his jury trial waiver extended only to whether he had suffered the prior conviction. The appellate court concluded the "defendant must have comprehended that the prosecutor still intended to prove that the current offense was a serious felony," as she did not also dismiss the section 667, subdivision (a) allegation. ( Id. at pp. 477-478.) The appellate court held the defendant's failure to object to the dismissal of the great bodily injury allegation and to the dismissal of the jury without a determination as to whether his current offense was a serious felony precluded the claim on appeal. ( Id. at p. 478.)
In sum, in light of defendant's waiver of a jury trial on the prior allegations, the trial court properly assumed the responsibility of determining whether defendant's current offense was a serious felony. Thus, the court was warranted in concluding that defendant's violation of section 243, subdivision (d), was such a felony.
II.-V.
See footnote, ante, page 1609.
III. Trial Court's Awareness of Discretion to Dismiss Strike
Defendant claims his matter must be remanded for resentencing because the trial court "did not understand that it could consider the length of the sentence to be imposed as a factor in exercising its discretion" when ruling on his motion to strike his prior strike conviction. It is true that "an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss." ( People v. Carmony (2004) 33 Cal.4th 367, 378 ( Carmony).) However, the record fails to establish the trial court misunderstood its discretion here. "'[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."'" ( Carmony, supra, 33 Cal.4th at p. 377.) In determining whether to strike a prior strike conviction, a trial court shall give "no weight whatsoever . . . to factors extrinsic to the scheme, such as . . . bare antipathy to the consequences for any given defendant. . . . [P]reponderant weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." ( People v. Williams (1998) 17 Cal.4th 148, 161.) It is through a review of these factors that a trial court determines whether a particular defendant "may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." ( Ibid.; Carmony, supra, 33 Cal.4th at p. 377.) Here, in response to defendant's expression of frustration regarding the length of his sentence as compared to other inmates who, in his view, had committed more serious crimes, the trial court said it was "profoundly sorry" it had to impose a 13-year sentence on defendant but it was required to do so under the law. At the hearing on defendant's motion to strike his prior conviction, the court stated it was "trouble[d]" by having to deny defendant's motion but it could find no basis for striking the prior conviction other than a dislike for the three strikes sentencing structure, which it acknowledged was not a basis for exercising discretion in defendant's favor. The court concluded: "Under the circumstances, I just can't articulate any circumstances that would allow me to strike the strike. . . ." Defendant maintains the trial court's statements evince a lack of understanding that it could consider the length of the sentence as a factor in exercising its discretion to strike his prior conviction. Defendant primarily relies on People v. Garcia (1999) 20 Cal.4th 490, 501, in which the California Supreme Court held that a trial court has discretion to strike prior convictions on a count-by-count basis under the three strikes law. In reaching this conclusion, the court noted that "a defendant's sentence is . . . a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." ( Garcia, at p. 500.) Contrary to defendant's suggestion, we do not understand Garcia to mean that the length of sentence is a factor in the same sense as are circumstances pertaining to a defendant's background and offenses. The length of sentence is "the overarching consideration" when ruling on a motion to dismiss a strike because, based on a consideration of defendant's relevant circumstances, the sentence mandated by the three strikes law may be deemed unjustly lengthy. It is in this sense only that the length of sentence is a consideration when ruling on a motion to strike a prior strike conviction. In People v. Zichwic (2001) 94 Cal.App.4th 944, a defendant convicted of second degree burglary made a motion to strike his five prior convictions for first degree burglary. Although the trial court felt sympathetic to the defendant and found the 25-year-to-life sentence "harsh" in light of the nonviolent character of the defendant's crimes, it concluded the defendant fell within the spirit of the three strikes law and it was without authority to strike the priors in order to reduce defendant's sentence "to something reasonable." ( Id. at pp. 958-959.) The Court of Appeal, Sixth Appellate District agreed, concluding there was nothing in the record to indicate the trial court misunderstood its discretion. ( Id. at pp. 9609-61.) Similarly, the trial court's comments, here, were clear. Much as it acknowledged a dislike for the three strikes sentencing scheme and regret at the length of the sentence it was required to impose under that scheme, the court could find nothing about defendant's circumstances that would justify departing from the scheme. The trial court's comments suggest that it was well aware of the parameters of its discretion under the three strikes law. Accordingly, we reject defendant's claim in this regard.
Defendant's notice of appeal was filed on July 29, 2004, at his initial sentencing hearing. However, the sentencing hearing was continued to address time credits and restitution. The trial court noted that the notice of appeal might be premature but stated, "let's go ahead and file it today." This court will exercise its discretion to treat the notice as though it were filed immediately after judgment was entered in this matter. (Cal. Rules of Court, rule 30.1(b).)
IV. Ineffective Assistance of Counsel
Defendant claims that, by failing to object to comments by the prosecutor during closing argument that referred to his failure to testify, his trial attorney rendered ineffective assistance of counsel. This claim is without merit. While the prosecution may not comment upon a defendant's failure to testify and may not argue that evidence was uncontroverted if such evidence could have been refuted only by the defendant, this does not bar argument on "the state of the evidence." ( People v. Bradford (1997) 15 Cal.4th 1229, 1339.) Furthermore, even "'indirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.'" ( Id. at p. 1340.) Defendant submits the following excerpts as the objectionable portion of the prosecution's argument: "Even though the children can come into court and say, 'I think it was an accident,' they don't know. ¶ And let me illustrate that for you. If I was sitting here at my table and knock over my cup of water, who is the one person that can tell you whether it's an accident or not? . . . I'm the one person that can tell you whether I intended to knock it over, to create a disturbance or a diversion, or whether it was an accident. ¶ . . . ¶ I am still waiting — we are all still waiting for some sort of plausible explanation — and we haven't heard it, ladies and gentlemen. . . ." Taken out of context, these statements might be understood as a reference to defendant's failure to testify. However, when placed in context, they cannot. In response to defense counsel's argument that the jury could find the incident intentional only if it concluded the children were lying, the prosecutor argued that, while the children might think the incident was accidental, they could not know this. The prosecutor used an example that if he knocked over a cup of water, he would be "the one person that c[ould] tell you whether [he] intended to knock it over . . . or whether it was an accident." The prosecutor concluded his argument on this point by again noting, "So the children really can't tell you. [T]he fact that they have come in and they have offered opinions, they don't know. They don't know what their dad was thinking." He followed this with a discussion of the children's bias and their motive to testify untruthfully. In context, these statements by the prosecutor addressed how to view the children's testimony that defendant's conduct was accidental. The cup of water example presented by the prosecutor illustrated that the children could offer only an opinion on defendant's state of mind, as they could not know what defendant was thinking. This illustration was designed to refute the defense argument by conveying that the children could truthfully testify to their belief that the incident was accidental even if defendant, in fact, intended his actions. The prosecutor neither stated nor inferred that there was an absence of evidence that defendant's conduct was accidental, which would have been more likely to be understood by the jury as a comment on defendant's failure to testify. The prosecutor's comments here are similar to those in People v. Mitcham (1992) 1 Cal.4th 1027, 1050, in which the prosecutor argued in regard to the defendant's state of mind at the time of the offense: "' We'll never know what he thought.'" The California Supreme Court found the comment "was a permissible reference to the state of the evidence and the fact that intent may be difficult to prove directly" and noted that "[t]he prosecutor did not argue that the evidence of defendant's intent to kill was uncontradicted by defendant." ( Id. at p. 1051.) Such is the case here. Similarly, when placed in context, the prosecutor's statement "we are all still waiting for some sort of plausible explanation — and we haven't heard it" is not susceptible to the meaning urged by defendant. The statement followed the prosecutor's argument that defendant's claim of accident was belied by the fact that he "verbally identified his target," "show[ed] ill-will toward his target" and then attacked him. The prosecutor then argued "we are all still waiting for some sort of plausible explanation" of how the defendant "gets his foot up that high, hits that tiny target, when it also happens to be the face of the man that he's announced he doesn't like, the one person in that room." In briefing this issue, defendant quotes only one line of this argument: "[W]e are all still waiting for some sort of plausible explanation — and we haven't heard it." Furthermore, defendant presents this quote as though it were part of the prosecutor's argument about how to view the children's opinion that defendant's conduct was accidental. However, as can be seen from reading the quote in context, the statement was not a reference to defendant's failure to testify, but instead was an observation as to the implausibility that defendant's act of kicking Walton in the face was an accident when he had just made a derogatory statement about him. In other words, the attorney was commenting on the state of the evidence. There is no reasonable likelihood a jury would have understood these comments otherwise. (See People v. Johnson (1992) 3 Cal.4th 1183, 1228.) Defendant also claims he was denied effective assistance of counsel because his attorney failed to object to the imposition of the prior serious felony enhancement without a jury determination, failed to object to an aggravated sentence under Blakely, and failed to inform the trial court of its discretion to consider the length of defendant's sentence in determining whether to dismiss defendant's prior strike. These claims also fail. To establish ineffective assistance of counsel, defendant must show that his attorney's performance was deficient and that it is reasonably probable he would have obtained a different outcome absent such performance. ( People v. Jackson (1996) 13 Cal.4th 1164, 1217.) We have already concluded the trial court acted properly in making the determination that defendant was subject to the enhancement under section 667, subdivision (a), and in imposing an upper term sentence. And, in his motion to strike defendant's prior conviction, defendant's attorney argued that a 13-year sentence "seems disproportionately harsh" based on various circumstances. Furthermore, as previously discussed, there is nothing in the record to suggest the trial court was not fully aware of the scope of its discretion when ruling on defendant's motion to strike. In sum, counsel's performance was not deficient.
V. Blakely Claim
Defendant claims the trial court's imposition of an upper term sentence in his matter violated the holding in Blakely, supra, 542 U.S. 296 [ 159 L.Ed.2d 403]. We disagree. In Blakely, the Supreme Court reiterated its holding in Apprendi, supra, 530 U.S. at page 490 [ 147 L.Ed.2d at p. 455], 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.'" ( Blakely, supra, 542 U.S. at p. 301 [ 159 L.Ed.2d at p. 412].) The statutory maximum is the greatest sentence the court can impose based on facts reflected in the jury's verdict or admitted by the defendant. ( Id. at p. 303 [ 159 L.Ed.2d at pp. 413-414].) Subsequent to the filing of defendant's appellate brief, the California Supreme Court held, in People v. Black (2005) 35 Cal.4th 1238, 1261, 1262-1264, that the California sentencing scheme — including the procedure for selecting an upper term — does not violate the holding in Blakely. We are bound by this holding. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, the trial court sentenced defendant to the upper term based on the probation report, which cited defendant's significant criminal record and prior prison term among the factors justifying the imposition of an upper term. Defendant concedes his prior prison term was properly considered by the trial court as an aggravating factor under Blakely, falling within the exception for "prior convictions." ( Blakely, supra, 542 U.S. at p. 301 [ 159 L.Ed.2d at pp. 412].) Furthermore, we disagree with defendant's assertion that the trial court's reliance on his "extensive criminal record" was anything more than consideration of defendant's prior convictions. In any event, as one valid factor in aggravation is sufficient to expose defendant to the upper term ( People v. Cruz (1995) 38 Cal.App.4th 427, 433), the trial court's consideration of additional factors did not violate Blakely.
DISPOSITION
The judgment is affirmed.Davis, Acting P. J., and Raye, J., concurred.
A petition for a rehearing was denied June 27, 2006, and appellant's petition for review by the Supreme Court was denied September 20, 2006, S144869. Kennard, J., was of the opinion that the petition should be granted.