Towne

Defendant Shawn Towne was charged with multiple offenses ranging from kidnapping and robbery to “joyriding,” but was convicted of only the last offense. He contends that imposition of the upper term sentence on that offense violated his Sixth Amendment right to a jury trial on facts that were used to increase his sentence above the statutory maximum, as that right has been interpreted in Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] (Cunningham). We conclude the aggravating circumstance that a defendant served a prior prison term or was on probation or parole at the time the crime was committed may *71 be determined by a judge and need not be decided by a jury. In addition, the aggravating circumstance that a defendant’s prior performance on probation or parole was unsatisfactory may be determined by a judge, so long as that determination is based upon the defendant’s record of one or more prior convictions.

Defendant also contends that in imposing sentence, the trial court is prohibited by federal constitutional principles and state law from making findings of fact that are inconsistent with the jury’s verdict acquitting the defendant…

As the United States Supreme Court has recently stated, “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California (2007) 549 U.S. 270, 274-275 [ 166 L.Ed.2d 856 , 127 S.Ct. 856, 860 ], italics added; see also Blakely v. Washington (2004) 542 U.S. 296, 301 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ]; Apprendi v. New Jersey (2000) 530 U.S. 466, 488-490 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ].) In part II of its opinion here, the majority applies that rule to certain recidivism-related provisions of the California Rules of Court that, at the time of defendant’s trial, permitted trial courts to impose a sentence above the statutory maximum if the defendant had “served a prior prison term” (Cal. Rules of Court, rule 4.421(b)(3)), if the defendant “was on probation or parole when the crime was committed” (id., rule 4.421(b)(4)), or if “[t]he defendant’s prior performance on probation or parole was unsatisfactory” (id., rule 4.421(b)(5)).

The majority holds that the federal…