People v. Medrano

Opinion

In 2001, defendant Juan Miguel Medrano was sentenced to five years in state prison pursuant to a negotiated plea agreement in two Butte County cases. Based on the parties’ stipulation that defendant was addicted to or in danger of becoming addicted to narcotics (Welf. & Inst. Code, § 3051), the court suspended execution of the sentence and referred defendant to the California Rehabilitation Center (CRC).

Six years later, defendant’s commitment to CRC was revoked and criminal proceedings were reinstated after he was convicted of a new offense in

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends the factors used by the trial court to impose the upper term should have been found true by a jury beyond a reasonable doubt according to the law in Cunningham, Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] (Apprendi), that the court violated his constitutional rights by failing to exercise its discretion to impose a lesser sentence in 2007, and that People v. Black (2007) 41 Cal.4th 799 [ 62 Cal.Rptr.3d 569 , 161 P.3d 1130 ] (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 [ 62 Cal.Rptr.3d 588 , 161 P.3d 1146 ] (Sandoval) were wrongly decided.

The People argue that, because defendant is appealing the court’s imposition of the upper term, the appeal should have been filed 60 days after imposition of the sentence in 2001. Because it was not, they urge, it is untimely and must therefore be dismissed. The People are wrong.

“[U]nder the statutory scheme surrounding commitment to CRC, the sentence imposed by the court ... is for practical purposes only an interim sentence. . . . [Citation.] There will be another sentencing hearing at a later date, at which time the court will be entitled to modify [defendant’s] sentence and even to dismiss the charges against him. Any determination of the validity of the current sentence, accordingly, would be premature.” (People v. Barnett (1995) 35 Cal.App.4th 1 , 3 [ 41 Cal.Rptr.2d 279 ].) Defendant’s sentence was not entered until he was discharged from CRC and returned to the trial court for further proceedings. His appeal from the sentence reimposed in 2007 is timely. (Id. at p. 5.)

In any event, defendant’s claim fails on the merits. Applying the Sixth Amendment to the federal Constitution, the United States Supreme Court

Accordingly, in Cunningham, the United States Supreme Court held that by “assigning] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. 274 [166 L.Ed.2d at p. 864] (italics added), overruling on this point People v. Black (2005) 35 Cal.4th 1238 [ 29 Cal.Rptr.3d 740 , 113 P.3d 534 ] (Black I), vacated and remanded in Black v. California (2007) 549 U.S. 1190 [ 167 L.Ed.2d 36 , 127 S.Ct. 1210 ].) Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt.

Applying Cunningham, in Black II, this state’s highest 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.” (Black II, supra, 41 Cal.4th at p. 816.)

In deciding to impose the upper term for the principal offense, the trial court cited the fact that defendant was on probation when the offense was committed. Although the court used a preponderance of the evidence standard in finding this circumstance in aggravation, defendant does not dispute that he was on three grants of probation at the time of his 2001 sentence.

As pointed out in Apprendi, Blakely, Cunningham and Black II, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment. (See, e.g., Cunningham, supra, 549 U.S. at p. 275 [166 L.Ed.2d at p. 864]; Black II, supra, 41 Cal.4th at

Here, it was proper for the trial court to impose the upper term based on defendant’s probationary status at the time of the crime, an aggravating factor that did not have to be submitted to a jury. (U.S. v. Corchado, supra, 427 F.3d at p. 820.) Accordingly, the trial court’s reliance on that factor did not run afoul of the Sixth Amendment.

Furthermore, as defendant concedes, we are obligated to follow Black II and Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ].) Since there is at least one valid qualifying factor which justifies his upper term sentence, defendant’s Cunningham claim is without merit.

Because defendant provides no analysis to support his claim that the court “had the right to modify defendant’s sentence downward should circumstances warrant it” but failed to do so, we need not discuss it. (See People v. Freeman (1994) 8 Cal.4th 450 , 482, fn. 2 [ 34 Cal.Rptr.2d 558 , 882 P.2d 249 ] [a reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed]; People v. Hardy (1992) 2 Cal.4th 86 , 150 [ 5 Cal.Rptr.2d 796 , 825 P.2d 781 ] [same]; People v. Galambos (2002) 104 Cal.App.4th 1147 , 1159 [ 128 Cal.Rptr.2d 844 ] [appellate contentions must be supported by analysis]; People v. Sangani (1994) 22 Cal.App.4th 1120 , 1135-1136 [ 28 Cal.Rptr.2d 158 ] [the appellant’s legal analysis must be connected to the evidence in the case].)

Finally, because we ultimately do not find any reversible sentencing error, we need not consider defendant’s contentions regarding Sandoval.

The judgment is affirmed.

Sims, Acting P. J., and Morrison, J., concurred.

Appellant’s petition for review by the Supreme Court was denied July 30, 2008, S163694. George, C. J., did not participate therein.