P. v. Burks

Filed 9/19/07 P. v. Burks CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Reversed with directions.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Paul E. Zellerbach, Judge. Petition denied.

Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

Following revocation of defendants probation for a 2004 drug possession for sale conviction,^[1]the sentencing court imposed the upper term of 5 years in prison. Defendant here contends, inter alia, that the trial court relied on improper factors in imposing an aggravated sentence. We agree that the trial courts reliance on all the factors related to the crime itself were improper; we also conclude that its reliance on the remaining factor was improper because it is not supported by the record. Therefore, we remand the matter for resentencing.

While his appeal was pending, defendant also filed a petition for writ of habeas corpus, reasserting a point he made in his appeal, i.e., that his trial attorney was incompetent for failing to object below to the trial courts reliance on facts occurring after his initial grant of probation in sentencing him. We considered the petition with the appeal for purposes of determining whether an order to show cause should issue. Based on the conclusions we reach in regard to defendants appeal, we deny the writ.

Proceedings Below

In 2004, defendant pled guilty to possessing cocaine base for sale (Health & Saf. Code, 11351.5), which offense had been committed on November 30, 2004. Proceedings were suspended and he was granted probation. On April 8, 2005, defendant admitted that he had violated his probation, the trial court agreed and reinstated probation on the terms and conditions initially imposed. The next month, he was charged with selling cocaine base for the benefit of a gang and being an active participant in a gang in March, April and May, 2005 In connection with these charges, it was alleged that he was in violation of his probation on the 2004 possession case. The preliminary hearing on these charges was combined with the hearing on the violation of probation on the 2004 drug possession for sale case. During the hearing, the prosecutions gang expert testified that before his 2004 offense, defendant had thrice admitted being a member of the Elm Street Piru gang. The expert opined that defendants 2004 crime was for the benefit of this gang. At the conclusion of the hearing, the trial court found defendant to be in violation of his probation in the 2004 drug possession for sale case and it bound him over on the March, April and May, 2005 drug and gang charges. The trial court later denied probation on the 2004 drug possession for sale case and sentenced defendant to the upper term for that offense, finding that the crime had been carried out in a manner that indicated planning, sophistication and professionalism, that it was gang-related, it involved a sizeable amount of drugs and at the time he committed it, he was on summary probation for two misdemeanor convictions of driving with a suspended license.^[2] The court found no mitigating circumstances.

Issues and Discussion

After the parties had fully briefed the propriety of the trial courts imposition of the upper term, the United States Supreme Court decided Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham) and the parties thereafter submitting supplemental briefing on its effect. In Cunningham, the Court held that the imposition of an upper term, based on the trial courts findings of fact, other than the fact of a prior conviction, violates the defendants Sixth and Fourteenth Amendment right to a jury trial. Under Californias Determinate Sentencing Law, the middle term is the maximum term to which a defendant may be sentenced, absent a jury finding of at least one aggravating factor, or the defendant waiving his/her right to such a finding. Thus, the trial courts reliance here on facts related to the crime itself violates Cunningham.^[3]

The People point out that under Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350], a defendant does not have a right to a jury trial for a sentence based on the fact of a prior conviction. The People further point out that in People v. McGee (2006) 38 Cal.4th 682, 707, the California Supreme Court, at least in the context of who is the proper determiner of whether a defendants prior is of the type to subject a defendant to increased punishment,^[4]adapted a broad view of what encompasses the fact of a prior conviction[,] concluding that Apprendi does not preclude a court from making sentencing determinations related to a defendants recidivism. From this premise, the People reason that the sentencing court here was entitled to consider not only its finding that defendant was on summary probation for two misdemeanor driving with a suspended/revoked license convictions, but that he had been arrested and bound over for the March, 2005 drug and gang offenses. However, the People cite no authority that arrests, charges and bind-overs are proof, even by the lesser standard of a preponderance, that a defendant is a recidivist. More importantly, even if the trial court could have relied on defendants March 2005, behavior in imposing the upper term, it did not. Thus, assuming the Peoples expansive use of the Almendarez-Torres exception is correct,^[5]we are left with the one factor relied upon by the sentencing court that, under the Peoples analysis, passes Cunningham muster, i.e., that defendant was on summary probation for two misdemeanor driving with a suspended/revoked license convictions when he committed the 2004 drug possession for sale.

We recognize that whether the Almendarez-Torres exception applies to the type of recidivist finding this trial court made, and whether a trial courts reliance on such a factor is sufficient to support its imposition of the upper term when it also relied on factors deemed improper under Cunningham are currently pending before the California Supreme Court in People v. Towne (review granted July 14, 2004, S125677). Cunningham error is subject to harmless error analysis (Washington v.Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546, 2551-2553]) under the standard established in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824]). (People v. Sengpadychith (2001) 26 Cal.4th 316, 327) However, even assuming that the Peoples analysis is correct and the trial court may consider a defendants status as a recidivist without jury findings and proof beyond a reasonable doubt, remand is required because the trial courts finding that defendant was a probationer when he committed this crime is not supported by the record.^[6]

Defendant pled guilty to the only two misdemeanors that appear in the record, which were for driving with a suspended or revoked license,^[7]the same day he pled to the 2004 drug possession for sale and immediately after being granted probation for the latter.^[8] He was then placed on probation for the misdemeanors. Therefore, contrary to the trial courts finding, defendant was not on summary probation when he committed the 2004 drug possession for sale.

To assist the sentencing court upon remand, we determine whether it may consider facts that occurred after a defendants conviction in determining the appropriate term to be imposed following termination of probation where probation has previously been violated and reinstated.

Under California Rules of Court, former rule 4.435(b)(1)^[9]the length of sentence must be based on the circumstances that existed at the time probation was granted, and subsequent events may not be considered. However, in People v. Harris (1990) 226 Cal.App.3d 141 (Harris), the Court of Appeal concluded that where probation had been granted, revoked and reinstated, then revoked, terminated and a prison sentence imposed, the length of the sentence may be based on factors that existed up to the time of the reinstatement. The appellate court concluded that nothing in the language or history of the predecessor of California Rules of Court, rule 4.435(b)(1)^[10]dictated that the subsection prohibited consideration of pre-reinstatement factors. It pointed out that People v. Rodriguez (1975) 14 Cal.3d 639 (Rodriguez) was the reason why the rule had been drafted. (Harris, at p. 146.) Rodriguez held that under the former Indeterminate Sentencing Law, once the Adult Authority set the primary term for a defendant and the defendant was subsequently placed on parole, which was violated, the defendant could only be sentenced to the term set by the Authority and not a new term based on what occurred after the defendant was convicted. (Rodriquez,at p. 649.) Harris pointed out, however, that Rodriguez has never been applied to limit the initial chose of a base term under the Determinate Sentencing Law and that subsection (b)(1) does not strictly apply Rodriguez since it allows consideration of factors occurring after the offense but before probation is granted. (Harris, at p. 146.)

Indeed, in People v. Gonzales (1989) 208 Cal.App.3d 1170, 1173, Division Three of this court noted that in People v. Hovey (1988) 44 Cal.3d 543, 577-578 and People v.Redmond (1981) 29 Cal.3d 904, 913, 914, the California Supreme Court did not interpret Rodriguez as prohibiting the use of a defendants conduct between commission of the crime and sentencing to justify the imposition of a more severe sentence. (Accord, People v. Brady (1984) 162 Cal.App.3d 1, 4, fn. 2.)

Returning to Harris, the appellate court noted that despite the undercutting of Rodriguez by subsequent California Supreme Court decisions, it based its conclusion that consideration of pre-reinstatement factors in determining the sentence upon subsequent termination of probation was proper based on the language of [4.435(b)s predecessor] itself, which appears to allow viewing reinstated probation as a grant of probation.^[11]Harris added, To hold otherwise would seriously impede a courts flexibility to deal effectively with the offender who, granted the clemency and grace of probation in the hopes of achieving rehabilitation [citation], proves unable to abide by the conditions of that liberty the first time out. Allowing an offender to fail multiple grants of probation with absolute impunity under [California Rules of Court, rule No. 4.435s predecessor] would discourage a court from ever reinstating probation. That would further crowd prisons and tend to sacrifice probations goals of supervised reform and rehabilitation. (Harris, supra, 226 Cal.App.3d. at p. 147) These words ring more true today than they did when Harris was decided in 1990. We adopt them as our own.^[12] Thus, upon remand, the sentencing court could properly consider defendants pre-April 8, 2005 conduct.^[13]

Disposition

The judgment is reversed and the matter is remanded for resentencing in a manner consistent with the views expressed in this opinion. The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

KING

J.

MILLER

J.

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^[1] Defendant denied violating probation and following a contested hearing, the trial court found him to be in violation. Therefore, People v. Bobbitt (2006) 138 Cal.App.4th 445, holding that the failure to obtain a certificate of probable cause prohibits a pleading defendant from arguing Cunningham error, and implying that the same is true of probationers who admit their violations, and accept a sentence lid, is inapplicable.

^[2] Of the latter, the sentencing court said,  . . . [E]ven though th[e drug possession for sale] is his first felony conviction, he was on summary probation in two other misdemeanor cases at the time. The clear implication of the trial courts remark is that defendant was on summary probation at the time he committed the drug possession for sale. This is certainly the implication both appellate counsel derived.

^[3] We reject the Peoples contention that defendant waived the propriety of the sentencing courts reliance on factors deemed inappropriate by Cunningham because at the time of the sentencing hearing, People v Black (2005) 35 Cal.4th 1238, 1255-1256 [overruled in Cunningham], which allowed use of those factors, was binding on the trial court. (People v. Esquibel (2006) 143 Cal.App.4th 645, 660) The People also contend that defendant waived his right to a jury determination beyond a reasonable doubt of the factors cited by the trial court that involved the offense when, in 2004, he waived his right to a jury trial of his guilt of the offense and pled guilty. They cite no authority in support of their position.

^[4] In McGee, the issue was whether defendant had served a prison term for a prior conviction.

^[5] Even defendant concedes this may be the case.

^[6] Because we do not remand for the trial court to necessarily have a jury find aggravating circumstances beyond a reasonable doubt, we need not address defendants contention that the trial court lacks the ability to conduct such a trial.

^[7] Nothing in the record before us indicates when these offenses occurred.

^[8] Appellate counsel for defendant does not indicate his realization of this fact until the end of his supplemental brief, and even then, he does not appear to appreciate its significance. The People appear not to realize it at all.

^[9] Former rule 4.435(b)(1) states Upon revocation and termination of probation pursuant to section 1203.2, when the sentencing judge determines that the defendant shall be committed to prison: (1) If the imposition of sentence was previously suspended, the judge shall impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c). [] The length of the sentence shall be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term nor in deciding whether to strike the additional punishment for enhancements charged and found.

^[10] It was California Rules of Court, rule 435(b)(1).

^[11] This was based on the fact that California Rules of Court, rule No. 435 (and, now, 4.435) does not specifically address a situation where . . . probation was granted, revoked and then, . . . reinstated . . . . (Harris, supra, 226 Cal.App.3d. at p. 145) The Harris court added, a court considering reinstatement surely must consider rule 414s [(now California Rules of Court, rule No. 4.414s)] enumeration of [c]riteria affecting the decision to grant or deny probation[.] (Harris at p. 146, italics omitted.)

^[12] Given our conclusion, we necessarily reject the holding of People v. Colley (1980) 113 Cal.App.3d 870, which, in reaching a conclusion contrary to Harris, failed to address this or other matters addressed in Harris. Defendant also cites People v. Angus (1980) 114 Cal.App.3d 973, but it did not involve imposing a prison term following a reinstatement of probation.

^[13] Because we so conclude, we need not address the Peoples argument that defendant waived the propriety of the trial courts reliance on facts arising after the original grant of probation under People v. Scott (1994) 9 Cal.4th 331by failing to assert it below and defendants argument that his attorney below was incompetent for failing to make the assertion.