P. v, Barrett

Filed 10/29/07 P. v, Barrett CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Ruffo Espinosa, Jr., Judge. Affirmed.

Rebecca F. Thornton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Defendant and appellant Jimmy Barretts sole contention on appeal is that the trial court violated his Sixth and Fourteenth Amendment right to a jury trial by imposing the upper term sentence on his conviction for sale and transportation of marijuana.^[1]We affirm.

PROCEDURAL BACKGROUND

Because defendant does not challenge his conviction by a jury of violating Health and Safety Code sections 11360, subdivision (a) (count 1) and 11359 (count 2), we need not discuss the facts resulting in those convictions.^[2]After defendant waived a jury trial on the allegations that he suffered prior convictions under the Three Strikes Law the trial court found those allegations true.^[3]Defendant was sentenced to a total of eight years in prison comprised of the upper term of four years on count 1, doubled pursuant to the Three Strikes Law; plus a concurrent two-year midterm on count 2. He filed a timely notice of appeal.

DISCUSSION

Imposition of the Upper Term Did Not Violate Defendants Constitutional

Right to a Jury Trial

Defendant contends imposition of the upper term on count 1 violated his Sixth Amendment right to a jury trial under Cunningham v. California (2007) ___ U.S. __, [127 S.Ct. 856] (Cunningham) because none of the aggravating circumstances relied upon by the trial court to select the upper term were found true by a jury beyond a reasonable doubt. We disagree, as the trial court expressly based its upper term sentence, in part, on defendants past criminal history, a factor outside Cunninghams ambit.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. In Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), the high court clarified that the statutory maximum for purposes of the right to a jury trial is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In Cunningham, the court held that Californias Determinate Sentencing Law violates a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments because it assigns to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence. However, Blakely and Cunningham both reaffirmed that the right to a jury trial does not apply to the fact of a prior conviction. (Blakely, supra, at p. 301; Cunningham, supra, 127 S.Ct. at p. 868.)

Applying the rules announced in Apprendi, Blakely, and Cunningham,our Supreme Court in Black held that the fact of prior conviction exception recognized by Apprendi and its progeny includes not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior conviction. [Citations.] (Black, supra,41 Cal.4th at p. 819) For example, in Black, the court held that the exception includes the circumstance that the defendants prior convictions were numerous and of increasing seriousness. (Ibid.) Moreover, the court in Black held thatas long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to a jury trial. (Black, supra, at p. 812; SEE ALSO People v. Brock (2007) 155 Cal.App.4th 903.)

Here, the trial court articulated the following three aggravating circumstances in support of its selection of the upper term on count 1:

        The crime required planning and sophistication (Cal. Rules of Court, rule 4.421(a)(8));^[4]

        Defendant suffered a prior prison sentence (rule 4.421(b)(3)); and

        The number and seriousness of defendants prior convictions (rule 4.421(b)(2)).^[5]

Since two of these three circumstances ‑‑ the fact defendant suffered a prior prison sentence and the number and seriousness of his prior convictions ‑‑ were related to prior convictions and as such independently render defendant eligible for the upper term, his Sixth Amendment rights were not violated by imposition of that term. Given the seriousness of defendants prior record and the trial courts comments about that record, and that narcotic sales cases all involve some amount of planning or sophistication, even if the planning and sophistication elements were removed from consideration, there is no question the trial judge would have imposed the same sentence.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

FLIER, J.

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[1] The Peoples argument that defendant has forfeited this claim by failing to object at sentencing is without merit inasmuch as the sentencing hearing occurred on October 18, 2006, several months before the United States Supreme Court decided that aspects of Californias sentencing scheme violated a defendants right to a jury trial. (See People v. Black (2007) 41 Cal.4th 799, 810 (Black).)

[2] As relevant here, Health and Safety Code section 11360, subdivision (a) makes it a crime to sell marijuana and section 11359 makes it a crime to possess marijuana for sale.

[3] The prosecutor elected to not proceed on the alleged Penal Code section 667.5, subdivision (b) priors.

[4] All undesignated rule citations are to the California Rules of Court.

[5] First, regarding defendants eligibility for probation, the trial court commented: [I have the representation] from the probation officer that hes been convicted of several serious felonies, assault with intent to commit rape, aggravated sexual assault, lewd and lascivious conduct with a minor under 14. . . . High risk of flight and unsuitable for probation, ineligible.  []  Unless I change this to be an unusual case and frankly in looking over his record and numerous convictions, this is not an unusual case, so my inclination is to deny probation and sentence him to the high term of four years times two for the strike, which is eight years in state prison. Next, it observed: Now for the high term, I think the fact that its an aggravation would be the way the drugs were found and various packages indicate that there was planning and sophistication[.] [O]f course, an aggravating factor [is] also [that] he has various prior prison terms. . . .  []  . . . [A]lso an aggravating factor is [that] the prior convictions [are] numerous. I cant really say they are increasing in seriousness because the prior crimes are very serious.