P. v. Batchelor

Filed 7/17/07 P. v. Batchelor CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

John Vernon Meigs, Judge. Affirmed.

Athena Shudde, 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, Assistant Attorney General, Susan Sullivan Pithey and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

James Walter Batchelor appeals the judgment entered following his conviction by jury of four counts of robbery in which Batchelor personally used a dangerous or deadly weapon and a principal was armed with a firearm. (Pen. Code, 211, 12022, subds. (a)(1) and (b)(1).)^[1] Batchelor admitted a prior conviction of residential burglary in Florida in 1981 within the meaning of the Three Strikes law ( 1170.12, 667, subds. (b) - (i)) and section 667, subdivision (a)(1). The trial court sentenced Batchelor to a prison term of 22 years. We reject Batchelors claim of sentencing error and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

1. The underlying offense.

On January 15, 2004, Batchelor and several accomplices committed a take over style robbery of an acupuncture salon in Inglewood. During the robbery, one of Batchelors accomplices was armed with a firearm and Batchelor personally was armed with a machete.

Batchelor testified in his own defense at trial and denied taking part in the robbery, claiming he was at the acupuncture salon for treatment of a back injury. In the course of his testimony, Batchelor admitted he had suffered a felony conviction approximately 25 years earlier.

2. Sentencing.

Following the jurys verdicts, Batchelor admitted a prior conviction of residential burglary in Florida in 1981 within the meaning of the Three Strikes law. At the time of sentencing, defense counsel asked the trial court to strike the prior conviction in the interests of justice because it was an out of state prior conviction and all four robbery counts in the present case occurred at the same time and place.

The People objected that, although the prior conviction occurred in 1981, Batchelor was returned to prison on a parole violation in 1987 and again in 1993. Also, Batchelor was imprisoned on another matter from 1998 through 2000. Thus, Batchelor had not been free of custody for more than five years since commission of the prior conviction.

The trial court denied the motion to strike, citing Batchelors continuing incarceration after the prior conviction.

With respect to sentencing, the trial court selected the upper term of five years on count 1 because Batchelor had a long history of criminal activity that appeared to be increasing in seriousness and there were no factors in mitigation. The trial court doubled the term under the Three Strikes law and added one year for the personal use of a dangerous or deadly weapon. As to counts 2, 3 and 4, the trial court imposed consecutive terms of one year as to each count, doubled. The trial court also imposed a five-year enhancement under section 667, subdivision (a)(1) for a total term of 22 years in state prison.

CONTENTIONS

Batchelor contends imposition of the upper term violated his Sixth Amendment right to a jury trial.(Cunningham v. California (2007) 549 U.S. ---- [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).)^[2]

The People respond Batchelor forfeited this claim by failing to raise it in the trial court, the upper term is supported by Batchelors recidivism and any error was harmless.

DISCUSSION

1. Relevant principles.

Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], held: Other 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. (Id. at p. 490.) Blakely v. Washington (2004)542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] reiterated this rule and applied it to invalidate enhanced punishment imposed under a sentencing scheme that bore some similarity to the upper, middle, and lower term system used in Californias Determinate Sentencing Law (DSL).

In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court held the provision in section 1170, subdivision (b), that the middle term be imposed unless there are circumstances in aggravation or mitigation of the crime, did not trigger the right to jury trial under Apprendi and Blakely.^[3] However, in Cunningham, supra, 549 U.S. at p. ---- [127 S.Ct. at p. 861], the United States Supreme Court concluded the middle term is the statutory maximum sentence under the DSL, overruling Black. Cunningham held that [b]ecause the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Cunningham, supra, [127 S.Ct. at p. 871].)

2. Batchelor did not forfeit the sentencing issue he raises on appeal.

The People argue Batchelor forfeited his claim of error arising under Cunningham because he failed to raise it at sentencing, which occurred in this case after Blakely was decided.

However, at the time Batchelor was sentenced, Black was the prevailing law in California. Black, which held Blakely was inapplicable to the selection of the upper term, was reversed on this point in Cunningham. (Cunningham, supra, 549 U.S. at p. ---- [127 S.Ct. at p. 871].) Thus, Batchelors objection under Blakely to the upper term would have been futile. (Cf. People v. Hill (2005) 131 Cal.App.4th 1089, 1103 [defendant sentenced after Blakely but before Black].) Accordingly, Batchelor did not forfeit the claim he raises under Cunningham. We therefore address the merits of Batchelors contention.

3. The upper term imposed in this case did not violate Cunningham.

a. Batchelors argument.

Apprendi recognized a prior conviction exception to the rule that a trial court may not increase the penalty for a crime based on aggravating factors that were not proved to a jury beyond a reasonable doubt. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) This exception derives from Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350], which recognized the special role of a defendants recidivism in a trial courts authority to sentence a criminal defendant.

Batchelor contends the prior conviction exception recognized in Apprendi includes only the fact of a prior conviction, not whether the defendant has numerous prior convictions or whether the prior convictions are increasing in seriousness. Batchelor notes the Cunningham majority rejected Justice Kennedys proposed distinction between aggravating factors based on the nature of the offense and aggravating factors based on the nature of the offender. Based thereon, Batchelor concludes the high court intended to restrict the interpretation of the prior conviction exception.^[4]

b. Broad construction of the exception.

The prior conviction exception has been interpreted broadly to encompass all sentencing determinations which require a mere examination of court records pertaining to a defendants prior conviction to determine the nature or basis of the conviction . . . . (People v. McGee (2006) 38 Cal.4th 682, 709.) As McGee explained, such an inquiry is the type . . . that judges traditionally perform as part of the sentencing function. (Ibid., quoting People v. Kelii (1999) 21 Cal.4th 452, 456; see also People v. Thomas (2001) 91 Cal.App.4th 212, 221-223 [prior prison terms used to increase defendants sentence is a recidivism factor falling within the exception to Apprendi].) In People v. McGee, supra, 38 Cal.4th at p. 709, the California Supreme Court specifically rejected attempts to narrow this exception in advance of such a decision by the [United States Supreme Court]. (Id. at p. 709.)

Under this broad construction, the factors found by the trial court, namely, that Batchelor had a long history of criminal activity and that his convictions were increasing in seriousness, clearly fall within the exception. However, even under a narrow view of the exception, Batchelors claim fails.

c. Narrow construction of the exception.

The scope of the prior conviction exception presently is pending before the California Supreme Court in People v. Towne S125677. After Cunningham was decided, the Supreme Court requested additional briefing in Towne on the following issues:  (1)  Do Cunningham v. California, supra, and Almendarez-Torres v. United States [, supra,] 523 U.S. 224, 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendants prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendants prior performance on probation or parole was unsatisfactory ([Cal.] Rules of Court, rule 4.421[ (b)(2)-(b)(5))?]; [] (2) Is there any violation of the defendants Sixth Amendment rights under Cunningham v. California, supra, if the defendant is eligible for the upper term based upon a single aggravating factor that has been established by means that satisfy the governing Sixth Amendment authorities-by, for example, a jury finding, the defendants criminal history, or the defendants admission-even if the trial judge relies on other aggravating factors (not established by such means) in exercising his or her discretion to select among the three sentences for which the defendant is eligible? (People v. Towne, supra, Cal. S.Ct. dock. entry (2/7/07); see also, People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914.)

Obviously, if the broad interpretation of the prior conviction exception is continued in Towne, or if Towne concludes a single factor in aggravation renders a defendant eligible for the upper term, Batchelors contention fails. However, even if the Supreme Court adopts a narrow view of the prior conviction exception, no different result obtains in this case.

Batchelor admitted a prior conviction of residential burglary in Florida in 1981 within the meaning of the Three Strikes law. In opposing Batchelors request to strike this prior conviction, the prosecutor noted Batchelor was returned to prison on a parole violation in 1987 and again in 1993, and that Batchelor was imprisoned on another matter from 1998 through 2000. Additionally, the report of the probation officer indicated Batchelor was convicted of shoplifting in Florida in 1978, illegal use of a credit card in Florida in 1979, larceny in Florida in 1980, misdemeanor stalking in California in 1991, injury to telephone or power line in California in 1992 and misdemeanor assault in California in 1992. The report of the probation officer does not reflect the conviction underlying Batchelors incarceration in 1998, referred to by the prosecutor at sentencing. However, Batchelor did not object to the prosecutors opposition to the motion to strike the prior conviction and did not object to the report of the probation officer.

This evidence permitted the trial court to find, consistent with Apprendi and without offending Batchelors right to a jury trial, the fact of at least seven prior convictions, not including the conviction that resulted in Batchelors incarceration in 1998. Batchelor did not have a jury trial right with respect to the fact of these prior convictions. The trial courts constitutionally permissible finding of the fact of each of these prior conviction leads inexorably to the conclusion Batchelor has suffered numerous prior convictions. Further, given that Batchelors current offenses are the most serious offenses he has committed since 1981, Batchelors convictions obviously are increasing in seriousness. Because both of these facts flow from the trial courts constitutionally permissible finding of the fact of the prior convictions, even under a narrow construction of the prior conviction exception, no violation of Batchelors right to a jury trial appears.

Moreover, any conceivable error must be seen as harmless. (Washington v. Recuenco (2006) 548 U.S. ---- [126 S.Ct. 2546, 165 L.Ed.2d 466] [Apprendi/Blakely error not structural error requiring automatic reversal]; see People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [Apprendi error reviewable under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].) Although Batchelor insists it is impossible to determine, on this record, whether the jury would have found the aggravating factors relied upon by the trial court to be true, Batchelor admitted a prior felony conviction during his testimony at trial and thus would have admitted the additional convictions set forth in the report of the probation officer had he been asked to do so. Based thereon, the jury would have found Batchelor had a long history of criminal activity and that his most recent offenses, four counts of robbery in which Batchelor personally was armed with a machete and an accomplice was armed with a firearm, were the most serious. On this record, we confidently conclude beyond a reasonable doubt that any infringement of Batchelors right to jury trial was harmless.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J. ALDRICH, J.

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^[1] Subsequent unspecified statutory references are to the Penal Code.

^[2] Batchelor also joins in any arguments raised by co-appellant Aguirre that may accrue to his benefit. However, Aguirre has abandoned the appeal in this case.

^[3] The Legislature amended the DSL in response to Cunningham. (Stats. 2007, ch. 3, 2, eff. Mar. 30, 2007.) All references to the DSL are to that statute as it read prior to this amendment.

^[4] One published case, People v. Govan (2007) 150 Cal.App.4th 1015, has agreed with Batchelors view. However, Justice Haller, dissenting in Govan, noted Cunningham did not involve the prior conviction exception and the footnote relied upon by the Govan majority merelyrejected Justice Kennedys view Apprendi should be limited to enhancements based on the nature of the offense. (Cunningham, supra, 549 U.S. at
pp. ---- [127 S.Ct. at pp. 864, 872-873] (dis. opn. of Kennedy, J.).)