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People v. Reed11/16/2004
nd its predecessor Almendarez-Torres v. United States, supra, 523 U.S. 224, 226, the court stated: "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, '[o]ther 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.)
*16 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 recidivist conduct. Defendant's prior poor performance on parole and commission of the current offenses while 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.)
We further conclude that defendant's prior convictions and poor performance on parole justified the selection of upper and consecutive terms, which we are convinced the trial court certainly would have imposed even without finding or considering any facts that require a jury trial under Blakely. Finally, the jury determined that defendant inflicted great bodily injury upon Lankford in finding the enhancement allegation true, and also found that defendant committed the vehicle code violations listed in the probation report as a circumstance in aggravation. "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 and even undeniable evidence were not offset by any mitigating circumstances. Beyond any reasonable doubt we find that the same sentence would have been imposed upon defendant without any Blakely error. Thus, even if the trial court erred in finding some aggravating factors, the decision to impose upper and consecutive terms 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 judgment is affirmed.
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