P. v. Bowen

Filed 10/11/06 P. v. Bowen CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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A jury convicted defendant Daniel Jerome Bowen in case No. 04F6111 of two misdemeanor counts of battery of the mother of defendant’s child (Pen. Code, § 243, subd. (e)(1)--counts 1 and 3);^[1] three felony counts of tampering with a utility line (§ 591--count 2), inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)--count 4), and battery with serious bodily injury (§ 243, subd. (d)--count 5); plus two misdemeanor counts of violation of a court order (§ 273.6, subd. (a)--counts 6 and 7); and found true two great bodily injury enhancements as to counts 4 and 5 (§ 12022.7, subd. (e)). In case No. 05F1693, defendant pleaded guilty to possession for sale of methamphetamine (Health & Saf. Code, § 11378) and admitted a prior serious felony conviction allegation (Pen. Code, § 1170.12) and that he was released on bail at the time he committed the offense (id., § 12022.1).

At sentencing on the two cases, the trial court selected count 4 in case No. 04F6111 as the principal term. It imposed upper term, consecutive sentences for the corporal injury conviction and the bodily injury enhancement (case No. 04F6111), citing the recency and frequency of defendant’s prior convictions as well as his substandard performance on probation and parole. (Cal. Rules of Court, rule 4.421(b)(2)-(5).) In the aggregate, the court sentenced defendant to 23 years eight months in state prison. Defendant appeals, contending the trial court imposed upper terms in violation of his federal constitutional right to trial by jury, as described in Blakely v. Washington (2005) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). (See also Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); United States v. Booker (2005) 543 U.S. 220, 232-234 [160 L.Ed.2d 621, 643].) Since this contention is without merit, we shall affirm.

FACTUAL BACKGROUND

Only the facts in case No. 04F6111 are relevant to defendant’s contentions. Defendant became embroiled in an argument with the mother of his child. At one point, defendant choked the victim and struck her in the head with his closed fist seven or eight times. The victim managed to break free and escape to a different room, but defendant continued to argue with her. The victim eventually said something that set defendant off, and he came at her with a deranged look on his face. The victim ran towards the front door, but defendant tackled her from behind, causing multiple fractures to her foot. Defendant was convicted and sentenced as set forth above.

DISCUSSION

I

Applying the Sixth Amendment to the Constitution of the United States, the Supreme Court held in Apprendi that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 302-305 [159 L.Ed.2d at pp. 413-414].)

Relying on these principles, defendant contends upper terms were unauthorized because the trial court relied on facts not submitted to the jury and proved beyond a reasonable doubt, thus depriving him of the constitutional right to a jury trial on facts legally essential to the sentence.

The California Supreme Court rejected this argument in People v. Black (2005) 35 Cal.4th 1238 (Black),^[2] where it held that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law” (id. at p. 1244) does “not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker“ (Black, at p. 1254).

Even if we assume, for the sake of argument, that the federal Supreme Court decides Blakely, Apprendi and Booker apply to upper term sentences imposed under California’s determinate sentencing scheme, defendant’s argument still must fail because the “prior conviction” exception of Apprendi applies not only to the fact of a prior conviction, but to “an issue of recidivism which enhances a sentence and is unrelated to an element of a crime.” (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) A narrow reading of the Apprendi language that applies only to the “fact of a prior conviction” fails to consider the basis for the exception, and “takes that language out of its context.” (Thomas, at p. 216.) As Apprendi explained, one reason for the exclusion of prior convictions from the jury trial requirement for increased sentences is that the existence of a prior conviction “‘does not relate to the commission of the offense.’” (Apprendi, supra, 530 U.S. at pp. 488, 496 [147 L.Ed.2d at pp. 454, 458], quoting Almendarez-Torres v. United States (1998) 523 U.S. 224, 230, 244 [140 L.Ed.2d 350, 359, 368].) Another reason may be traced to the “procedural safeguards attached to any ‘fact’ of [a] prior conviction.” (Apprendi, supra, 530 U.S. at p. 488 [147 L.Ed.2d at p. 454].) Finally, recidivism “is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” (Almendarez-Torres, supra, 523 U.S. at p. 243 [140 L.Ed.2d at p. 368]; Apprendi, supra, at p. 488 [147 L.Ed.2d at p. 454].) Therefore, pursuant to the pertinent federal Supreme Court decisions, as well as Black, which we are bound to follow (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we reject defendant’s claim of sentencing error.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

MORRISON , Acting P. J.

ROBIE , J.

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

^[2] We note that a petition for certiorari is pending in Black, supra, 35 Cal.4th 1238 (cert. pending sub nom. Black v. California, case No. 05-6793) and the United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501 [nonpub. opn.], cert. granted sub nom. Cunningham v. California (2006) ___ U.S. ___ [164 L.Ed.2d 47]), which addresses a similar issue (and is set for argument on October 11, 2006).