P. v. Boldt

Filed 10/5/07 P. v. Boldt CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Joseph Boldt (Boldt) appeals from a judgment entered after a jury found him guilty of multiple criminal offenses and he was sentenced to an upper term based in part on his recidivism. He contends that the upper term of sentence violates his constitutional rights. We disagree and will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY
Boldt was charged by information with six counts arising from an incident in which he led police on a high-speed chase and collided with another vehicle: (1) the murder of Bobby Kleinheinz (Pen. Code,  187, subd. (a)); (2) gross vehicular manslaughter in driving a vehicle while intoxicated, resulting in Kleinheinzs death(Pen. Code,  191.5, subd. (a)); (3) felony reckless driving, by driving under the influence and causing bodily injury to Girish Wadhawani (Veh. Code,  23153, subd. (a)); (4) felony evasion of a peace officer (Veh. Code,  2800.3); (5) being under the influence of methamphetamine (Health & Saf. Code,  11550); and (6) leaving the scene of an accident (Veh. Code,  20002, subd. (a)).

As to count 1, Boldt was alleged to have intentionally and personally inflicted great bodily harm on Kleinheinz (Pen. Code,  1203.075). It was also alleged that, as to count 3, Boldt personally inflicted great bodily injury on Wadhawani (Pen. Code,  12022.7, subd. (a)), and as to count 4 that he caused death or serious injury to Kleinheinz and Wadhawani. The matter proceeded to trial by jury.

A. Evidence at Trial

At about 1:30 a.m. on March 16, 2003, Sergeant Marc Farber of the Millbrae Police Department was in a marked police car, parked on Hillcrest Boulevard in Millbrae underneath a Highway 280 overpass, monitoring a stop sign. He observed a pickup truck, driven by Boldt, traveling through the intersection at about 40 miles per hour without stopping at the stop sign. Sergeant Farber then saw Boldts truck basically [going] up the off ramp of Highway 280.

Boldt entered Highway 280, driving southbound in the northbound lanes. Sergeant Farber activated his vehicles emergency lights and siren and gave chase. Driving an average of 75 miles per hour, the officer stayed about 200 feet behind Boldts pickup, as Boldt passed up several exits and northbound vehicles drove by. After around two miles, Boldt accelerated to approximately 100 miles per hour. As the pickup passed the junction with Highway 92, Sergeant Farber obtained its license plate number and called the number into dispatch and requested assistance.

Boldts friend, Bobby Kleinheinz, was a passenger in his truck during this pursuit. Both Boldt and Kleinheinz were under the influence of methamphetamine.

Boldt took a ramp from the highway to a vista point, traveling in the wrong direction. He drove over a fence that had previously been knocked down, counterclockwise through a parking circle, down a ramp, over a mound of dirt, over a curb, around barriers indicating road closed, and back onto the highway, proceeding southbound on northbound Highway 280.

Police vehicles, with their emergency lights activated, blocked some of the lanes of the highway, but Boldt drove past them, sideswiping the center median.

Throughout the pursuit, southbound on northbound Highway 280, several oncoming cars moved to the right or left to avoid Boldts pickup and the pursuing officer. Vincent Pascua testified that he saw headlights coming toward him, slowed down, and swerved to the left, but Boldts pickup sideswiped the right side of his vehicle. Pascua pulled over to the shoulder, but Boldt did not stop. Pascuas car was damaged, although nobody inside the car was injured.

Wadhawani testified that he too saw headlights coming toward him and tried to change lanes, but Boldts pickup crashed into his car. Both vehicles spun out of control, and Boldts truck went down an embankment on the side of the highway. Wadhawani suffered two broken arms, a broken hip, two fractures near his knee and two broken toes as a result of the collision; he spent two weeks in the hospital and another two weeks at a rehabilitation facility. Boldt and Kleinheinz were ejected from Boldts vehicle, and Kleinheinz died at the scene. Boldt was treated at the hospital for a broken collarbone and rotator cuff and an injury to his shin.

California Highway Patrol Officer Aaron Rohner interviewed Boldt in the hospital emergency room. Boldt admitted that he had been driving the pickup truck during the pursuit and that he was high after taking hits of crystal methamphetamine about an hour before driving. Blood testing revealed 170 nanograms per milliliter of methamphetamine in Boldts blood. A glass pipe with methamphetamine residue was on the floor of Boldts pickup. The pursuit had covered 18 miles.

At trial, Boldt admitted to using methamphetamine, running a stop sign, and attempting to evade Sergeant Farber. He explained that he was afraid and paranoid as a result of the methamphetamine and believed, based on the television program Cops, that if he got far enough ahead of Sergeant Farber, the officer would have to call off the chase.

B. Jury Verdict and Sentence

The jury returned guilty verdicts on counts 2 (vehicular manslaughter), 3 (reckless driving while intoxicated, causing injury), 4 (evading a police officer), and 5 (under the influence of methamphetamine) and found true the great bodily injury enhancement as to count 3. The jury found Boldt not guilty as to count 6 (leaving an accident scene) and was unable to reach a verdict as to count 1 (murder), as to which the trial court declared a mistrial. Count 1 was thereafter dismissed pursuant to the prosecutions agreement to dismiss the count in exchange for Boldts waiver of the application of Penal Code section 654 to his sentence.

The court sentenced Boldt to 13 years in state prison as follows: the upper term of 10 years on the vehicular manslaughter charge in count 2; a consecutive eight-month term (one-third the midterm) on count 3; a consecutive one-year term for the great bodily injury enhancement; a consecutive 16-month term (one-third the midterm) on count 4; and a one-year concurrent term on count 5.

In imposing the upper term as to count 2, the court found that: the crime demonstrated callousness; both Kleinheinz and Wadhawani were vulnerable; Boldts conduct was certainly violent conduct and [his] behavior . . . was a serious danger to society beyond what would be present in the basic elements of the crimes for which [he was] convicted; Boldt had prior convictions as an adult and prior adjudications as a juvenile, of increasing seriousness; and Boldts performance on probation was unsatisfactory, since he was on probation at the time of the offense. The court acknowledged there were also circumstances in mitigation, in that Kleinheinz initiated or was a willing participant at the onset of the pursuit and Boldt voluntarily acknowledged wrongdoing at an early stage.

This appeal followed.

II. DISCUSSION

Appellant claims the upper term of sentence on count 2 must be reversed because it was based on facts that were neither admitted nor found by the jury to be true. As indicated, the court relied on five aggravating factors in this regard: the crime involved acts disclosing a high degree of callousness (Cal. Rules of Court, rule 4.421(a)(1)); the victims were particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)); Boldts conduct was violent and indicative of a serious danger to society beyond that inherent in the crime (Cal. Rules of Court, rule 4.421(b)(1)); Boldts prior convictions and juvenile adjudications are of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); and Boldts prior performance on probation was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)). The jury did not make findings as to any of these factors.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the court held that Californias determinate sentencing law violated a defendants federal constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California (2007) 127 S.Ct. 856, 871 (Cunningham).)

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (People v.Sandoval (2007) 41 Cal.4th 825, 836-837 (Sandoval).) The latter exception was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), and has been construed broadly to apply to all factors based on a defendants recidivism. (See People v. Black (2007)41 Cal.4th 799, 819 (Black); People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.) If the trial court has found at least one aggravating factor that falls within either of these exceptions, the federal Constitution does not preclude it from imposing an upper term sentence based on that and other aggravating factors that do not fall within these exceptions. (Black, supra, at pp. 810-816.)

Here, one of the aggravating factors on which the trial court relied was that Boldts prior adult convictions and juvenile adjudications were increasingly serious. This factor falls within the Almendarez-Torres exception. Furthermore, the courts finding on this factor is supported by the record. The probation report indicates that, after coming to the attention of the juvenile authorities, Boldt was convicted as an adult in August 2002 of possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)) and again in November 2002 for the same crime. According to the report, Boldt was offered Deferred Entry of Judgment in 2002 [as to the first conviction], but he did not comply with the conditions and he was later placed on Proposition 36 for that case and an additional case. Pursuant to the Almendarez-Torres exception, the court properly sentenced Boldt to the upper term on count 2.

In addition, the trial court found that Boldts performance on probation was unsatisfactory, as he was on probation at the time of the offense. It was unnecessary under Cunningham for a jury to find this fact, because Boldt admitted to police that he was on probation in his tape-recorded statement at the hospital, which was played for the jury. Because Boldt admitted his probation status underlying the aggravating factor of California Rules of Court, rule 4.421(b)(5), no Cunningham error occurred. (Alternatively, his admission of his probation status would have unquestionably led the jury to conclude, beyond a reasonable doubt, that his prior performance on probation . . . was unsatisfactory, such that any Cunningham error in relying on California Rules of Court, rule 4.421(b)(5) was harmless beyond a reasonable doubt and therefore not reversible error.)

III. DISPOSITION
The judgment is affirmed.

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

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