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People v. Roach11/30/2004
hitting Alarcon, defendant decided to flee the scene, but not because of the assault. In fact, defendant testified he did not believe at that time he had hit Alarcon. Rather, he left because he knew he had been drinking at the airport. He did not want to "stick around and get in trouble for that if [he] didn't hit him." Defendant thus entertained multiple objectives that were not merely incidental to each other. Substantial evidence supports the trial court's decision not to stay sentencing on both the assault with a deadly weapon conviction and the hit and run conviction.
IV
Imposing Upper Sentencing Term
Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi, supra, 530 U.S. 466, that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury's verdict or admitted by the defendant. Thus, when a sentencing court's authority to impose an enhanced sentence depends upon additional findings of fact, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at p. ---- [159 L.Ed.2d at pp. 413-414].)
Relying on Apprendi and Blakely, defendant claims the trial court erred in imposing the upper term on the assault with a deadly weapon count because the court relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thus depriving him of the constitutional right to a jury trial on facts legally essential to the sentence.
The contention fails because the trial court imposed the upper term in part due to defendant's prior criminal convictions. (Cal. Rules of Court, rule 4.421(b)(2).) As we have noted, the rule of Apprendi and Blakely does not apply to a prior conviction used to increase the penalty for a crime. Since 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 other factors, in addition to the prior convictions, in deciding whether to impose the upper term did not violate the rule of Apprendi and Blakely.
DISPOSITION
*10 The trial court is directed to amend the abstract of judgment as follows: (1) denote defendant's conviction on count one was under Vehicle Code section 23153, subdivision (a) (not subd. (b)); and (2) denote the enhancement on count four was imposed pursuant to Vehicle Code section 12022.7, subdivision (a) (not subd. (c)). The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.
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