Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F02081
OPINION
ROBIE, J.
Based on a traffic accident in which defendant Lamar Whatley caused the death of one person and injuries to three others while driving intoxicated, a jury found him guilty of gross vehicular manslaughter while intoxicated (count one), driving under the influence with injury (count two), and driving with a blood-alcohol level of .08 percent or more (count three). As to counts two and three, the jury also found true that defendant injured more than one person and inflicted great bodily injury within the meaning of Vehicle Code section 23558 and Penal Code section 12022.7, respectively.
The trial court sentenced defendant to state prison for 12 years 4 months, consisting of the upper term of 10 years for the manslaughter plus an effective consecutive term, including the enhancements, of two years for driving under the influence. Sentence for the driving with a blood-alcohol percent greater than .08 was stayed pursuant to Penal Code section 654.
On appeal, defendant contends the court’s imposition of the upper term on count one and a consecutive term on count two violated his federal constitutional right to trial by jury and proof beyond a reasonable doubt because the court relied on a fact neither found by the jury nor admitted by defendant to impose that sentence. We reject these contentions.
PROCEDURAL BACKGROUND
At defendant’s sentencing on March 30, 2006, the court imposed the upper term of 10 years for the manslaughter conviction “because of [defendant’s] subsequent conduct most notably his arrest eight, nine months after the offense at issue for driving under the influence of alcohol and his conviction thereof with a blood-alcohol of .20.” The court then imposed an effective consecutive term of two years four months for count two, but stated no reason for doing so.
The traffic accident underlying this case occurred on August 6, 2004. Charges were filed on March 3, 2005, and defendant was arraigned on March 4, 2005, and released on bail. On April 22, 2005, defendant was arrested for driving under the influence. He was convicted of a misdemeanor for that incident on May 27, 2005.
DISCUSSION
I
Upper-Term Sentencing
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] 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 [147 L.Ed.2d at p. 455].) Under this rule, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court rejected a claim of Blakely error, concluding “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, at p. 1244.)
In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] however, the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law does “violate[] a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864].)
On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)
Defendant contends the trial court’s reliance on his conviction for driving under the influence to impose the upper term violated his rights under Blakely and Cunningham because that conviction occurred after the fatal accident of August 6, 2004. According to defendant, “Cunningham makes clear that the exception to the general rule is the ‘fact of a prior conviction’ -- which is distinct from a subsequent misdemeanor conviction. As such, it is an ‘extra fact’ beyond that established by the verdict and beyond that subject to the exception.”
In People v. Balderas (1985) 41 Cal.3d 144, 201, the California Supreme Court noted that “California courts have consistently . . . interpreted statutes which call for harsher penal treatment on the basis of ‘prior convictions’” as encompassing only “those [convictions] entered before commission” of the currently charged offense. Following Balderas, the appellate court in People v. Gonzales (1989) 208 Cal.App.3d 1170, 1172 concluded that “the ‘prior’ convictions and prison terms referred to in California Rules of Court, rule 421(b)(2) and (3) [now rule 4.421(b)(2) and (3)], are limited to those occurring prior to the currently charged offense.” Nevertheless, the court concluded that the “defendant’s conduct subsequent to the charged offense was properly considered as a factor in aggravation” because “[t]he judge was not . . . limited to the aggravating factors listed in rule 421, but was free to apply ‘additional criteria reasonably related to the decision being made.’” (Gonzales, at pp. 1172-1173.) Thus, in the absence of “some flat prohibition against using a defendant’s conduct subsequent to the offense to aggravate a sentence,” a conviction of another crime that occurs after the currently charged offense may be used to impose the upper term, even though it is not technically a “prior” conviction. (Id. at p. 1172.)
Here, defendant attempts to extend the reasoning in Balderas to the federal constitutional context of Blakely and Cunningham; however, he cites no authority supporting this extension. Instead, he simply asserts that a conviction subsequent to the currently charged offense cannot be a “prior” conviction for purposes of Blakely and Cunningham.
To be fair, defendant has not cited Balderas. His reasoning, however -- that a conviction occurring after the currently charged offense cannot qualify as a “prior” conviction -- is identical to the reasoning behind the Balderas rule.
We are aware of no principled basis for defendant’s ipse dixit reasoning. Under Apprendi, Blakely, and Cunningham, the trial court may use a “prior” conviction to increase the penalty for a crime beyond the prescribed statutory maximum without the jury finding, or the defendant admitting, that conviction. Inasmuch as this rule relates to sentencing, there is no reason that, for purposes of the rule, a “prior” conviction can only be one that occurred before the presently charged offense was committed. Rather, logic dictates that a “prior” conviction for purposes of Apprendi, Blakely, and Cunningham may be any conviction that occurred before the time sentence is imposed on the currently charged offense. (Cf. People v. Balderas, supra, 41 Cal.3d at pp. 207-208 (conc. & dis. opn. of Lucas, J.) [applying the same reasoning to the use of a “prior” conviction in sentencing in a death penalty case].)
Here, defendant committed the currently charged offenses on August 6, 2004. On April 22, 2005, he was arrested for driving under the influence, and on May 27, 2005, he was convicted of a misdemeanor for that incident. We know of no reason why the trial court could not consider that conviction as a “prior” conviction, without the need for a jury finding or admission by defendant, when the court undertook the sentencing of defendant in this case in March 2006.
In addition to the foregoing reasoning, there is another reason why defendant’s rights under Apprendi, Blakely, and Cunningham were not violated here. The judicial record shows that in addition to his conviction for driving under the influence from May 2005, defendant has three convictions for driving with a suspended license -- all of which predated the accident underlying this case. Thus, even if the conviction for driving under the influence could not be deemed a “prior” conviction for purposes of Apprendi, Blakely, and Cunningham, the three convictions for driving with a suspended license are without question prior convictions. Under Black II, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Such is the case here. Thus, the imposition of the upper term for manslaughter did not violate defendant’s rights.
II
Consecutive Sentencing
Defendant contends that the reasoning of Apprendi, Blakely,and Cunningham as applied to California’s upper term determinate sentencing is equally applicable to California’s consecutive determinate sentencing. This is so, he asserts, because a concurrent rather than a consecutive sentence is the presumptive term. We reject this contention.
While this appeal was pending, the California Supreme held in Black II that there is no presumption for concurrent sentencing under Penal Code section 669, which generally governs consecutive sentencing. (Black II, supra, 41 Cal.4th at pp. 822-823.) We are bound by this holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J., HULL , J.