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People v. Malone11/17/2004
.S. 224; Apprendi, supra, 530 U.S. at pp. 488, 490; Blakely, supra, 124 S.Ct at p. 2536.) The prior conviction exception to the Apprendi rule has been construed broadly; and it applies not only to the prior conviction, but also to other issues relating to a defendant's recidivism. (See, e.g., People v. Thomas (2001) 91 Cal.App.4th 212, 216-223.)
The trial court identified four aggravating factors to support the upper term sentence. Defendant has successfully challenged only one of those factors. The remaining three factors relate to his prior convictions and to his recidivism. These factors alone, without the invalid factor relating to the percentage of alcohol in his blood, were sufficient to support the upper term sentence. We cannot dispute the trial judge's conclusion that defendant is "an extreme threat to society." Our Watson analysis leads us to conclude that there is a reasonable probability that the trial court would have imposed the upper term based on any one of the first three aggravating factors. We reject defendant's contention that Blakeley requires reversal of his sentence.
*6 Finally, our independent review of the record under Wende, supra, 25 Cal.3d 436, reveals no other arguable issues.
DISPOSITION
Accordingly, we deny the petition and affirm the judgment of the trial court.
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