Plaintiff and Respondent,



Defendant and Appellant.


No. 394


2004 Cal. App. Unpub. Lexis 9304

2004 WL 2307111


October 14, 2004, Filed

San Mateo County Super. Ct. No. SC052426.




Swager, J.


 Following denial of defendant’s motion to suppress evidence (Pen. Code, § 1538.5) gathered pursuant to a parole search and a trial before a jury, he was found guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The trial court found that defendant committed a charged prior conviction (Pen. Code, § 1170.12, subd. (c)(1)), and served prior prison terms (Pen. Code, § 667.5, subd. (b)). n1 On appeal, he again contests the validity of the parole search, and claims that the trial court erred in its calculation of sentence credits. In a supplemental brief he has complained of the violation of his Sixth Amendment right to a jury trial due to the trial court’s imposition of an upper term of imprisonment. We find that the search was lawful pursuant to a condition of defendant’s parole, and any violation of his jury trial right by imposition of an upper term was not prejudicial, but the calculation of sentence credits was in error. We therefore direct the trial court to amend the judgment to add three days of sentence credits, but otherwise affirm the judgment.




On the afternoon of September 6, 2002, Officer Alex Rohleder of the San Bruno Police Department observed “two adults and a little baby walking down the street.” One of the adults was defendant, whom Officer Rohleder recognized “from a prior contact.” The officer was aware that defendant was on parole and heard from other officers that he “might have a parolee at large warrant.” The officer therefore parked his patrol vehicle and “made contact” with defendant.


Officer Rohleder asked defendant if “he had a warrant at that time.” Defendant replied, “no, he didn’t. He had already taken care of it.” Defendant added that he “was in good standing with his parole agent.” Rohleder determined that defendant was not subject to a parole warrant, but nevertheless “conducted a parolee search” as he waited for a cover officer. He knew that during a previous contact with South San Francisco officers defendant warned that the police “weren’t going to take him back to prison,” but neither defendant’s conduct nor officer safety caused him to undertake the search. The sole reason for the search, according to Officer Rohleder, was that defendant was “on parole.” He explained: “Because it’s a condition of his parole. I believe that being [a] parolee, that he needs to make sure he’s still obeying the laws. It’s a privilege for him to be out here.” n3 Officer Rohleder testified that he does not search all parolees “all the time,” but does conduct parole searches “on a regular basis” unless he has “other work to do” or already “dealt with” the parolee. The officer intended to discharge defendant after the parole search “if he had nothing on him illegal.”


Officer Rohleder found a cigarette box in defendant’s left breast pocket. Inside the box was a plastic baggie that contained methamphetamine. Defendant was immediately placed under arrest.


Officer Rohleder testified that he then asked defendant’s companion, Deborah Watson, for permission to search her, and she agreed. Nothing was found in her possession, and she was not detained.


Watson testified for the defense that as she and defendant were walking to a friend’s house with her three-year-old son, Officer Rohleder approached and asked defendant “if he had a warrant for his arrest.” Defendant did not say anything to the officer. Rohleder told appellant to “put his hands up on the car,” and remove his jacket. He searched the jacket, then searched defendant “again a second time.” According to Watson, the officer did not ask permission to search her, but rather told her to empty her pockets, and asked if she had any weapons or drugs. Officer Rohleder “went through” Watson’s “belongings on the top of the hood of the car,” then told her to “go home.”




I. The Validity of the Parole Search.


Defendant argues that the officer did not conduct a valid parole search. He makes a two-pronged argument: First, that the search was not justified by a reasonable “individualized suspicion” of criminal activity; and second, that the search was “arbitrary, capricious and harassing.”


Established law contravenes defendant’s contention that a parole search must be based upon reasonable suspicion of criminal activity by the parolee. “In People v. Reyes (1998) 19 Cal.4th 743, the court overruled a previous decision, People v. Burgener (1986) 41 Cal.3d 505, 224 Cal. Rptr. 112, and held that an adult parolee subject to a search condition could be searched even if the searching officers did not have a reasonable suspicion that the parolee had violated or was planning to violate either the law or the conditions of parole. Subject to the same proviso from [In re Tyrell J. (1994) 8 Cal.4th 68] about arbitrary, capricious, or harassing searches, ‘where the search is for a proper purpose, we hold that, even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy “society is ‘prepared to recognize as legitimate.’ “ ’ ” (People v. Lewis, supra, 74 Cal.App.4th 662, 667-668; see also People v. Cervantes (2002) 103 Cal.App.4th 1404, 1407-1408.) Thus, “reasonable suspicion is no longer a prerequisite to conducting a search of the subject’s person or property. Such a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing,” and does not exceed the scope of the consent. (People v. Reyes, supra, at p. 752; see also People v. Lewis, supra, at pp. 667-668; People v. Reed (1994) 23 Cal.App.4th 135, 141; People v. Velasquez (1993) 21 Cal.App.4th 555, 558.)


Despite defendant’s protest that the majority opinion in Reyes “is incorrect” and contrary to the position taken by other courts, “as an intermediate state appellate court, we, of course, are bound by decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455 ; People v. Superior Court (Persons) (1976) 56 Cal. App. 3d 191, 194, 128 Cal. Rptr. 314.)” (People v. Zichwic (2001) 94 Cal.App.4th 944, 952-953; see also People v. Superior Court (Moore) (1996) 50 Cal.App.4th 1202, 1211; People v. Brackett (1994) 25 Cal.App.4th 488, 501.) We therefore conclude that the parole search of defendant did not require a particularized suspicion of criminal activity. (People v. Zichwic, supra, at pp. 952-953.)


We turn to defendant’s argument that the parole search was “arbitrary, capricious and harassing” under the standard articulated in Reyes. “A search is arbitrary ‘when the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee.’ (People v. Reyes, supra, 19 Cal.4th at p. 754.) A search is a form of harassment when its motivation is a mere whim or caprice.” (People v. Cervantes, supra, 103 Cal.App.4th 1404, 1408.) “It may be unreasonable ‘ “if made too often, or at an unreasonable hour, or if unreasonably prolonged.” ‘ ” (People v. Zichwic, supra, 94 Cal.App.4th 944, 951, quoting from People v. Reyes, supra, at pp. 753-754; see also People v. Bremmer (1973) 30 Cal. App. 3d 1058, 1062, 106 Cal. Rptr. 797.)


We find nothing arbitrary or capricious in the search. “It is only when the motivation for the search is wholly arbitrary, when it is based merely on a whim or caprice or when there is no reasonable claim of a legitimate law enforcement purpose, e.g., an officer decides on a whim to stop the next red car he or she sees, that a search based on a [parole] search condition is unlawful.” (People v. Cervantes, supra, 103 Cal.App.4th 1404, 1408.) Officer Rohleder did not detain defendant indiscriminately or at his whim, but rather recognized him as a parolee, and thought he may be subject to an outstanding “parolee at large warrant.” The lawful basis for the search did not dissipate when the officer learned the warrant was not active. Nor was the officer compelled to rely upon “officer safety” to undertake the search. n4 The warrantless search was predicated entirely upon defendant’s parole status, not the warrant or the need for officer safety. And a legitimate law enforcement purpose for a parole search was expressed by Officer Rohleder: to determine whether defendant, as a parolee, was “still obeying the laws.” If defendant “had nothing on him illegal,” the officer intended to release him. The testimony by Officer Rohleder that he customarily searches identified parolees does not demonstrate arbitrariness, and indicates that the search was not conducted by the officer for the purpose of harassment or due to any personal animosity toward defendant. (People v. Reed, supra, 23 Cal.App.4th 135, 143.) Finally, the record shows that the search was not unreasonable in duration or the circumstances of its execution. We therefore conclude that the search of defendant was lawful.


II. The Calculation of Sentence Credits.


Defendant also argues that he is entitled to “an additional 3 days” of sentence credits, for a total of 342 days. The Attorney General concedes that an error in the calculation of sentence credits was committed, and upon review of the record we agree.


III. The Imposition of an Upper Term.


We have granted defendant the opportunity to submit a supplemental brief to present the argument that under the recent United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. ___ [124 S. Ct. 2531], (Blakely), the trial court erred by imposing an upper term for his possession of methamphetamine conviction without an admission or supporting finding made by the jury beyond a reasonable doubt. He maintains that under the Blakely opinion the jury verdict, “standing alone,” did not authorize the upper term selected as a sentence choice by the trial court. He adds that, “California’s sentencing scheme required the trial court to impose the middle term, unless it justified a departure by reference to factors other than those necessarily found by the jury - just as the Washington statutory scheme involved in Blakely required an ‘exceptional’ sentence to be justified by reference to factors other than those used in computing the standard range sentence.” Therefore, he complains that imposition of upper term upon him violated his constitutional rights as defined in Blakely. n5


We first dispose of respondent’s contention that defendant “forfeited” any claim of Blakely error by failing to “request a jury trial” to determine the existence of a fact that may increase his sentence. “Claims of error relating to sentences ‘which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner’ are waived on appeal if not first raised in the trial court.” (People v. Brach (2002) 95 Cal.App.4th 571, 577; see also People v. Breazell (2002) 104 Cal.App.4th 298, 304-305.) According to a fundamental principle of appellate procedure, “with certain exceptions, an appellate court will not consider claims of error that could have been-but were not-raised in the trial court.” (People v. Vera (1997) 15 Cal.4th 269, 275.) “ ‘An appellate court should not take notice of matters not first presented to and considered by the trial court, where to do so would unfairly permit “one side to press an issue or theory on appeal that was not raised below.” (People v. Catlin (2001) 26 Cal.4th 81, 171.) “ ‘Generally speaking, the rationale underlying the rule requiring objection below as a prerequisite to complaint on appeal regarding some error by the trial court is predicated on the premise that, in its absence, the People would be deprived of the opportunity to cure the defect in the trial court and the defendant would be allowed to gamble on a favorable result-secure in the knowledge that if he did not prevail there, he would be able to prevail on appeal. . . (People v. Zamarron (1994) 30 Cal.App.4th 865, 870; see also People v. McClellan (1993) 6 Cal.4th 367, 377.) The waiver doctrine also seeks to “ ‘ “encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided . . . .” (People v. Peel (1993) 17 Cal.App.4th 594, 600.)


“The California Supreme Court has repeatedly held” that even “constitutional objections must be interposed before the trial judge in order to preserve such contentions for appeal.” (People v. Rudd (1998) 63 Cal.App.4th 620, 628, citing People v. Williams (1997) 16 Cal.4th 153, 250; People v. Padilla (1995) 11 Cal.4th 891, 971; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20; People v. Garceau (1993) 6 Cal.4th 140, 173-174; People v. McPeters (1992) 2 Cal.4th 1148, 1174; People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10.) “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. omitted; see also People v. Rudd, supra, at p. 629.)


However, “Not all claims of error are prohibited in the absence of a timely objection in the trial court. A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights.” (People v. Vera, supra, 15 Cal.4th 269, 276.) Further, failure to object does not prevent correction or vacation of an “unauthorized sentence” on appeal. (In re Birdwell (1996) 50 Cal.App.4th 926, 931.) “An unauthorized sentence is a narrow exception to the requirement that the parties raise their claims in the trial court to preserve the issue for appeal.” (People v. Breazell, supra, 104 Cal.App.4th 298, 304.) “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” (People v. Scott (1994) 9 Cal.4th 331, 354; see also People v. Breazell, supra, at p. 304; People v. McGee (1993) 15 Cal.App.4th 107, 117.) “Claims involving unauthorized sentences or sentences entered in excess of jurisdiction can be raised at any time.” (People v. Andrade (2002) 100 Cal.App.4th 351, 354; see also People v. Turner (2002) 96 Cal.App.4th 1409, 1415.) A related exception to the waiver rule is that it “is generally not applied when the alleged error involves a pure question of law, which can be resolved on appeal without reference to a record developed below.” (People v. Williams (1999) 77 Cal.App.4th 436, 460.)


In the present case defendant has presented a claim of deprivation of the fundamental constitutional rights to jury trial and proof beyond a reasonable doubt. (People v. Holmes (1960) 54 Cal.2d 442, 443-444, 5 Cal. Rptr. 871.) The constitutional challenge raised by defendant is an issue of law that we may decide without reference to the particular sentencing record developed in the trial court. (In re Justin S. (2001) 93 Cal.App.4th 811, 815.) And if his position is found to have merit, the sentence may not lawfully be imposed under any circumstances without a jury trial, and as an unauthorized component of his disposition may be corrected on appeal despite the lack of an objection in the trial court. (Ibid.; People v. Cleveland (2001) 87 Cal.App.4th 263, 268, fn. 2; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534; People v. Chambers (1998) 65 Cal.App.4th 819, 823; In re Paul R. (1996) 42 Cal.App.4th 1582, 1590; People v. Sexton (1995) 33 Cal.App.4th 64, 69.) Finally, Blakely was decided after defendant was sentenced, and therefore he had no reason to object in the face of previously established law that unfailingly declared a defendant has no constitutional right to a jury trial in connection with the imposition of an upper term of imprisonment. (See People v. Ochoa (2004) 121 Cal.App.4th 1551, 1565; People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231; People v. Ramos (1980) 106 Cal. App. 3d 591, 605-606, 165 Cal. Rptr. 179; People v. Williams (1980) 103 Cal. App. 3d 507, 510, 163 Cal. Rptr. 169; People v. Betterton (1979) 93 Cal. App. 3d 406, 410-411, 155 Cal. Rptr. 537; People v. Nelson (1978) 85 Cal. App. 3d 99, 102-103, 149 Cal. Rptr. 177; U.S. v. Harrison (8th Cir. 2003) 340 F.3d 497, 500.) We cannot find that he voluntarily and intelligently relinquished a known right, or forfeited his right to object on appeal by failing specifically to raise an objection in a timely fashion. We therefore conclude that defendant has not waived his right to complain of denial of the right to a jury trial under Blakely, and despite the lack of an objection below elect to address his constitutional claims on their merits. (People v. Ochoa, supra, at p. 1565; People v. Peck (1996) 52 Cal.App.4th 351, 362, fn. 5; see also People v. Marshall (1996) 13 Cal.4th 799, 831-832; People v. Ashmus, supra, 54 Cal.3d 932, 976; In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 537; People v. Williams (1998) 61 Cal.App.4th 649, 657.)


In Blakely, the United States Supreme Court revisited the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 147 L. Ed. 2d 435 (Apprendi), that “other 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, 124 S. Ct. 2531, 2536, italics added.) At issue in Blakely was whether the determinate sentencing procedure in the State of Washington deprived the defendant of his “federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. “ (Id. at p. 2536.) The petitioner entered a guilty plea to second-degree kidnapping of his estranged wife in which he admitted domestic violence and use of a firearm, but “no other relevant facts.” (Id. at pp. 2534-2535.) Under the Washington Criminal Code ( §§ 9A.40.030(3); 9A.20.021(1)(b)), second-degree kidnapping was designated a class B felony that carried a maximum statutory sentence of 10 years. (Blakely, supra, at p. 2535.) The governing Washington sentencing guidelines further limited the presumptive “standard range” to 49-53 months, but authorized the judge to impose a sentence above the specified range, although below the 10-year maximum, upon a finding by a preponderance of the evidence of “substantial and compelling reasons justifying an exceptional sentence.” (Ibid., citing Wash. Rev. Code § 9.94A.120(2)). At the sentencing proceeding, an “exceptional sentence” of 90 months was imposed, based upon the trial judge’s finding that the petitioner used “deliberate cruelty” in the commission of the offense, which was one of the statutorily enumerated grounds for departure from the standard sentencing range. (Blakely, supra, at p. 2535.) n6


The court in Blakely reaffirmed the commitment articulated in its prior decisions in Apprendi, supra, 530 U.S. 466, and Ring v. Arizona (2002) 536 U.S. 584, 153 L. Ed. 2d 556, “to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.” (Blakely, supra, 124 S. Ct. 2531, 2538-2539.) The Sixth Amendment, declared the court, “is not a limitation on judicial power, but a reservation of jury power.” (Id., at p. 2540.) The court further observed that “Apprendi carries out this design by ensuring that the judges’ authority to sentence derives wholly from the jury’s verdict.” (Id., at p. 2539.)


The court in Blakely operated from the essential conclusion reached in both its Apprendi and Ring decisions that a defendant’s constitutional rights have been violated when a judge “imposes a sentence greater than the maximum he could have imposed under state law without the challenged factual finding. Apprendi, supra, at 491-497, 120 S. Ct. 2348; Ring, supra, at 603-609, 122 S. Ct. 2428.” (Blakely, supra, 124 S. Ct. 2531, 2537.) The notion advocated by the State in Blakely “that there was no Apprendi violation because the relevant ‘statutory maximum’ is not 53 months, but the 10-year maximum for class B felonies in § 9A.20.021(1)(b),” and “no exceptional sentence may exceed that limit,” was rejected as contrary to those “clear” precedents. (Blakely, supra, 124 S. Ct. 2531, 2537.) Instead, the court defined “the ‘statutory maximum’ for Apprendi purposes” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ , and the judge exceeds his proper authority.” (Ibid; see also United States v. Ameline (9th Cir. 2004) 376 F.3d 967, 975.)


The court then concluded: “The judge in this case could not have imposed the exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea. Those facts alone were insufficient because, as the Washington Supreme Court has explained, ‘[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense,’ , which in this case included the elements of second-degree kidnapping and the use of a firearm, see §§ 9.94A. 320, 9.94A.310(3)(b). Had the judge imposed the 90-month sentence solely on the basis of the plea, he would have been reversed. See § 9.94A.210(4). The ‘maximum sentence’ is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an aggravator).” (Blakely, supra, 124 S. Ct. 2531, 2537-2538, fn. omitted.) “Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” (Blakely, supra, at p. 2538.) “Nor does it matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. He cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence.” (Blakely, supra, at p. 2538, fn. 8.)


Without deciding that defendant’s constitutional rights pursuant to the Blakely opinion were violated, we find that he did not suffer prejudice from the imposition of the upper term upon him without a separate finding by the jury of aggravating circumstances beyond a reasonable doubt. We do not, as defendant urges, consider the denial of Blakely jury trial rights during sentencing proceedings to be of such fundamental, structural magnitude to require reversal “without regard to prejudice.” And we conclude under a harmless error analysis that defendant would have been sentenced to an upper term even without the trial court’s finding of any aggravating factors in violation of Blakely.


In Arizona v. Fulminante (1991) 499 U.S. 279, 113 L. Ed. 2d 302, “a majority of the high court, in discussing the applicable harmless error standard for constitutional errors, distinguished ‘trial error,’ that is, an error which ‘occurs during the presentation of the case to the jury,’ from ‘structural defects,’ such as denial of a public trial, which ‘affect the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ The former errors are subject to Chapman analysis (see Chapman v. California (1967) 386 U.S. 18, 24 [17 L. Ed. 2d 705, 710-711, 87 S. Ct. 824, 24 A.L.R.3d 1065] [error or deprivation must be shown harmless beyond reasonable doubt]), whereas the latter errors are deemed reversible per se.” (People v. Woodward (1992) 4 Cal.4th 376, 387.) “There is a strong presumption any error falls within the [former] category, and it is the rare case in which a constitutional violation will not be subject to harmless error analysis.” (People v. Marshall, supra, 13 Cal.4th 799, 851.) “In only a few cases has the Supreme Court found a constitutional violation which is not subject to harmless error analysis.(People v. Evans (1998) 62 Cal.App.4th 186, 194.)


The United States Supreme Court has “ ‘recognized that “most constitutional errors can be harmless.” “If the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Indeed, we have found an error to be “structural,” and thus subject to automatic reversal, only in a “very limited class of cases.” ‘ “ (People v. Scott (2001) 91 Cal.App.4th 1197, 1210, citing Johnson v. United States (1997) 520 U.S. 461, 468, 137 L. Ed. 2d 718 .) “ ‘The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.’ “ (People v. Flood (1998) 18 Cal.4th 470, 492, citing Rose v. Clark (1986) 478 U.S. 570, 579, 92 L. Ed. 2d 460.)


We recognize that where the right to a jury trial is “ ‘altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.’ ” (People v. Avila (1995) 35 Cal.App.4th 642, 656, fn. omitted; see also People v. Collins (2001) 26 Cal.4th 297, 312-313.) “Where demonstration of prejudice is ‘ “a practical impossibility, prejudice must necessarily be implied.” ‘ ” (People v. Molina (2000) 82 Cal.App.4th 1329, 1333.)


But here, the denial of the rights to a jury trial to proof beyond a reasonable doubt are only associated with the finding of one or perhaps two among many aggravating circumstances that contributed to the selection of the upper term, not the structure of the trial itself that resulted in the guilty verdict and imposition of sentence. Defendant was tried and found guilty by a fairly selected, impartial jury. He was represented by counsel and received a full opportunity to elicit evidence and offer argument to an impartial judge to support imposition of a middle or lower term. Placed in context, the lack of a jury finding of an aggravating circumstance does not rise to the level of an error that automatically requires reversal of an otherwise valid sentence. (See Rose v. Clark, supra, 478 U.S. 570, 579; People v. Evans, supra, 62 Cal.App.4th 186, 197.) The nature of the error also permits a quantitative assessment of prejudice in the context of the evidence presented in order to determine whether the error was harmless. (Arizona v. Fulminante, supra, 499 U.S. 279, 307-308; People v. Marshall, supra, 13 Cal.4th 799, 851.) We find that any sentencing error under Blakely is not a structural defect that demands automatic reversal. (See People v. Epps (2001) 25 Cal.4th 19, 29; People v. Vera, supra, 15 Cal.4th 269, 278; People v. Marshall, supra, at pp. 851-852.) Rather, we follow the standard of review for federal constitutional errors (Chapman v. California, supra, 386 U.S. 18, 24), and must reverse the sentence unless it appears beyond a reasonable doubt that the assumed error did not contribute to the verdict. (People v. Neal (2003) 31 Cal.4th 63, 86; People v. Carter (2003) 30 Cal.4th 1166, 1221-1222; People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)


Our review of the record discloses that to impose the upper term upon defendant the trial court properly relied upon numerous aggravating factors that do not fall within the reach of the right to a jury trial articulated in Blakely. Defendant’s record of prior offenses, including multiple crimes of violence, is lengthy and unrelenting. As aggravating factors to support the sentence choice, the court cited - in addition to lack of remorse and failure to take advantage of treatment programs - defendant’s “record of prior convictions, some of which involve violent conduct; his prior service of prison terms; his lack of satisfactory performance while on parole;” and his “prior conduct while on parole, including five parole violations.” No mitigating factors were cited by the court or mentioned in the probation report.


The aggravating factors that relate to defendant’s prior convictions and other recidivist conduct did not implicate his right to a jury trial under the current state of the law. In Apprendi the court specifically declared that based on its prior decision in Almendarez-Torres v. United States (1998) 523 U.S. 224, 140 L. Ed. 2d 350, “Other 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.” (Apprendi, supra, 530 U.S. 466, 490, italics added; see also People v. Taylor (2004) 118 Cal.App.4th 11, 28; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314.) Thus, “by its terms, the holding of Apprendi does not apply to ‘the fact of a prior conviction . . . .’ ” (People v. Taylor, supra, at p. 28.) “Apprendi was absolutely clear in excepting the fact of prior convictions from its new rule.” (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 154.)


Nothing articulated in the Blakely opinion casts doubt upon the exclusion in Apprendi of prior conviction allegations from the constitutional right to jury trial, and the California Supreme Court has steadfastly declared that neither the federal nor state constitutions confer the right to have a jury determine any factual issues relating to prior convictions alleged for purposes of sentencing enhancement. (People v. Epps, supra, 25 Cal.4th 19, 23; People v. Kelii (1999) 21 Cal.4th 452, 455; People v. Vera, supra, 15 Cal.4th 269, 277; People v. Wiley (1995) 9 Cal.4th 580, 585; People v. McGee (2004) 115 Cal.App.4th 819, 828.) Even in the aftermath of Apprendi our high court held: “The right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution.” (People v. Epps, supra, at p. 23; see also People v. Belmares (2003) 106 Cal.App.4th 19, 27.)


The exception has also been found to apply not only to the fact of a prior conviction, but to “an issue of recidivism which enhances a sentence and is unrelated to an element of a crime.” (People v. Thomas (2001) 91 Cal.App.4th 212, 223; see also People v. Taylor, supra, 118 Cal.App.4th 11, 28-29.) A narrow reading of the Apprendi language to apply to nothing more than the “fact of a prior conviction” fails to consider the bases for the exception, and “takes that language out of its context.” (People v. Thomas, supra, at p. 216.) A reason for the exemption of prior convictions from the scope of the jury trial requirement for increased sentences, explained the court, is that “procedural safeguards attached to any ‘fact’ of prior conviction.” (Apprendi, supra, 530 U.S. 466, 488; see also People v. Lee, supra, 111 Cal.App.4th 1310, 1314.) The court further emphasized that the fact of a prior conviction “ ‘does not relate to the commission of the offense.’ “ (Apprendi, supra, at pp. 488, 496, quoting Almendarez-Torres v. United States, supra, 523 U.S. 224, 230, 244; see also People v. Taylor, supra, at p. 29.) And finally, the court “excepted the fact of a prior conviction from this holding, because of the long tradition allowing sentencing judges to consider the defendant’s recidivism.” (People v. Bowden (2002) 102 Cal.App.4th 387, 392, italics omitted; see also Jones v. United States (1999) 526 U.S. 227, 249, 143 L. Ed. 2d 311.) “Recidivism ‘is as typical a sentencing factor as one might imagine.’ “ (Castillo v. United States (2000) 530 U.S. 120, 126, 147 L. Ed. 2d 94.)


“Courts have construed Apprendi as requiring a jury trial except as to matters relating to ‘recidivism. ‘ Courts have not described Apprendi as requiring jury trials on matters other than the precise ‘fact’ of a prior conviction. Rather, courts have held that no jury trial right exists on matters involving the more broadly framed issue of ‘recidivism.’ Appellate courts have held that Apprendi does not require full due process treatment to recidivism allegations which involved elements merely beyond the fact of conviction itself.” (People v. Thomas, supra, 91 Cal.App.4th 212, 221-222; see also People v. Belmares, supra, 106 Cal.App.4th 19, 27-28.)


Thus, in People v. Thomas, supra, 91 Cal.App.4th 212, the court concluded that under Apprendi the defendant was not entitled to a jury trial on two prior prison term allegations. Following an analysis of Apprendi and its predecessor Almendarez-Torres v. United States, supra, 523 U.S. 224, 226, the court declared: “With the foregoing legal analysis in mind, we reach the following conclusions. In terms of recidivism findings that enhance a sentence and are unrelated to the elements of a crime, Almendarez-Torres is the controlling due process authority. Almendarez-Torres does not require full due process treatment of an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. Apprendi did not overrule Almendarez-Torres. The language relied upon by defendant in Apprendi, ‘other than the fact of a prior conviction,’ refers broadly to recidivism enhancements which include section 667.5 prior prison term allegations.” (Id., at pp. 222-223; see also People v. Taylor, supra, 118 Cal.App.4th 11, 28-29.)


We similarly conclude that the trial court in the case before us did not violate defendant’s jury trial rights by finding aggravating circumstances based upon his recidivism. Defendant’s prior prison terms and performance on parole arose out of his prior convictions previously found by the trier of fact or admitted by him, may be established by review of court records, and did not relate to commission of the current offense. Therefore, the aggravating circumstances relating to defendant’s recidivism were properly relied upon by the court to impose an upper term without affording defendant the right to a jury trial. (People v. George (2004) 122 Cal.App.4th 419 [Sept. 15, 2004, D.A.R. 11568, 11573.) We further conclude that defendant’s prior convictions, prison terms, and poor performance on parole justified the selection of an upper term, which we are convinced the trial court certainly would have imposed even without finding any facts that require a jury trial under Blakely. “California courts have long held that a single factor in aggravation is sufficient to justify a sentencing choice, including the selection of an upper term . . . .” (People v. Brown (2000) 83 Cal.App.4th 1037, 1043.) Here, a multitude of aggravating circumstances established by persuasive evidence were not offset by any mitigating circumstances. Thus, even if the trial court erred in finding aggravating factors, the decision to impose the upper term was constitutionally valid and not prejudicial to defendant. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1263-1264; People v. Williams (1996) 46 Cal.App.4th 1767, 1782-1783.)




Accordingly, the trial court is directed to correct the abstract of judgment to award defendant 342 days of sentence credits rather than 339 days, and to forward the corrected abstract of judgment to the Department of Corrections. In all other respects the judgment is affirmed.


Swager, J.


We concur:


Marchiano, P. J.

Margulies, J.




1 All further statutory references are to the Penal Code.


2 Given that appellant has challenged only the propriety of the parole search and the sentence imposed, we will recite only the facts pertinent to the validity of the search, which were presented at the hearing on the motion to suppress.


3 Appellant’s condition of parole stated that he agreed to “search and seizure by a parole officer or other peace officer at any time of the night or day, with or without a search warrant or with or without cause.” “Such conditions are now automatic, and imposed on every parolee.” (People v. Lewis (1999) 74 Cal.App.4th 662, 668.)


4 In fact, Rohleder discounted officer safety as a reason for the search.


5 We are of course aware that the effect of Blakely, supra, 542 U.S. __ [124 S. Ct. 2531], on California sentencing law is already before the California Supreme Court in People v. Black, review granted July 8, 2004, S126182, and People v. Towne, review granted June 18, 2004, S125677.


6 Under the Washington Sentencing Reform Act, the factors that may be relied upon to justify a finding of an exceptional sentence are listed, but the list is illustrative not exhaustive. A factor may be taken into consideration to impose an exceptional sentence only if it is not already taken into account in the calculation of the standard range sentence for the offense. (Blakely, supra, 124 S. Ct. 2531, 2535.)