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People v. Emerson11/18/2004
icial proceedings, i.e., if a factor relied upon by the trial court in violation of Apprendi was uncontroverted at trial and supported by overwhelming evidence. (Cotton, supra, at p. 631, 122 S.Ct. at p. 1785, 152 L.Ed.2d at p. 868.)
Although the degree to which Cotton applies to California law may be debated, it stands at least for the proposition that Apprendi, and, by extension, Blakely error is not so fundamental that it requires reversal of a sentencing decision in all circumstances. It is appropriate therefore to consider the effect of the error on the sentencing proceedings to determine whether the error can be deemed harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.)
Considering the number of defendant's prior convictions dating back to 1975, we are convinced beyond a reasonable doubt that error in considering defendant's prior prison term and his performance on parole, if there was error, was harmless. Defendant's Blakely challenge to the upper term sentence cannot be sustained.
DISPOSITION
The judgment is affirmed.
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