P. v. Carver

Filed 9/12/07 P. v. Carver CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant William D. Carver appeals from a judgment sentencing him to the upper term of three years for possessing methamphetamine. We affirm.

Background

As defendant pleaded guilty and challenges only the sentence and penalties imposed on his plea, the facts of the offenses are not at issue. Briefly, according to the probation report, on March 12, 1999, defendant was found to be in possession of .3 grams of methamphetamine and a glass smoking pipe commonly used to ingest methamphetamine.

Defendant pleaded guilty to charges of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and misdemeanor possession of paraphernalia (Health & Saf. Code, 11364). He was placed on diversion, but his diversion was terminated on February 9, 2001. Defendant had suffered two prior felony convictionsa 1989 conviction of unlawful sexual intercourse with a minor (Pen. Code,  261.5) and a 1990 conviction of grand theft (Pen. Code, 487.1). Although defendants convictions meant he was eligible for probation only if this were an unusual case (Pen. Code, 1203, subd. (e)(4)), his probation officer recommended probation. The probation officer pointed out that only a small amount of methamphetamine had been found in defendants possession, the original disposition had been diversion and defendants prior convictions had occurred nine years earlier. The probation officer believed defendants age, health, work history, family support history and willingness to address his substance abuse problem indicated he would be a fair candidate for probation. Assuming the court decided to deny probation, defendants probation officer recommended the upper term of three years in state prison. In support of that recommendation, the probation officer pointed out there were no mitigating factors, but two aggravating factors: (1) defendants prior convictions as an adult were numerous and of a continued seriousness, and (2) defendants prior performance on probation had been unsatisfactory.

The court adopted the probation officers recommendation to grant probation, and, on March 23, 2001, suspended imposition of sentence and placed defendant on probation for a period of three years on the conditions, among others, that defendant not leave California without first securing written permission from his probation officer and that he pay a restitution fine.

Defendant was released from custody on May 23, 2001. He immediately absconded, going to the state of Washington, where he resided for a short time, and then to Montana, where he resided for a time. Defendant apparently came into contact with the law in Colorado in July 2006 and was brought back to California on a warrant. On September 22, 2006, defendant admitted to a violation of his probation. Defendants probation officer, citing defendants failure to comply with the conditions of probation and his conduct in absconding after his release, recommended that the court decline to restore probation. Defendants probation officer also pointed out that the original presentence report had concluded that the upper term of three years was the most appropriate sentencing choice. She concurred with that recommendation.

On October 20, 2006, the court sentenced defendant to the upper term, explaining: I have read and considered the probation officers report. The original report did indicate that the probation officer had the opinion that if [defendant] was sentenced to prison, the upper term would be appropriate. The court feels the same. And the Court is not real impressed with the defendant in this case. [] Immediately after being released from a jail sentence in which he was given probation instead of prison, he left the state and went to the State of Washington, committed another crime up there, and then fled the State of Washington after that to go to I think it was Montana and apparently had some type of police contact in Montana, although there are no convictions listed in the report. And when they ran a wants and warrants check on him, our warrant popped up and apparently so did Washingtons. [] They then went through a process in Washington convicting him of a grand theft, and then he arrived back in this state based on no efforts of his own to come back and deal with his problems here or to report to probation. So basically, we have someone who was given the benefit of probation and then left the state and never reported to the probation officer, never complied with the other terms of his probation except the serving of the jail time over which he really didnt have choice as he was in custody during that period of time. [] So the court is going to follow the probation officers recommendation for the reason that was just stated, reasons just stated, and that the court feels that is an appropriate sentence as recommended in the original report. And the defendant had the benefit originally and didnt take advantage of that. [] So the defendant is ordered to serve a prison sentence at this time. That will be for a period of the upper term of three years.

Discussion

I.

Cunningham Error

In Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court found that Californias determinate sentencing law violates a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence. (Id. at p. ____ [127 S.Ct. at p. 871].) It is, however, settled that an exception exists as to the aggravating fact of a prior conviction. (Blakely v. Washington(2004) 542 U.S. 296, 301.) The sentencing court isentitled to consider a defendants recidivism because (1) recidivism traditionally has been used by sentencing courts to increase the length of an offenders sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial protections. (People v. McGee (2006) 38 Cal.4th 682, 698, citing Apprendi v. New Jersey(2000) 530 U.S. 466, 487-488.)

Defendant claims Cunningham error here. He recognizes the court was entitled to consider the aggravating facts of his prior convictions, but complains the court also cited defendants failure on probation and his postconviction conduct. After defendant filed his briefs, our Supreme Court decided People v. Black (2007) 41 Cal.4th 799, where at page 813 it held, [S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. Here, defendants prior felony convictions rendered him eligible for the upper term. It follows the trial court was entitled to consider all relevant aggravating factors in selecting the appropriate term.[1] The courts actions did not violate Cunningham.

II.

Trial Courts Citation to Circumstances Occurring

after Defendant Was Placed on Probation

Defendant contends the trial court erred by considering events taking place after defendant was granted probation when it selected the upper term. As defendant correctly points out, California Rules of Court, rule 4.435(b)(1) provided, in part, that 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. (And see People v. Harris (1990) 226 Cal.App.3d 141, 145-146, recognizing that while the trial court is entitled to consider events occurring after a grant of probation in deciding whether to reinstate probation, it is not entitled to use those events to support an upper term.) Defendants conduct after having been released on probation, therefore, was not a factor to be considered in determining the term of imprisonment. The courts words, taken in context, indicate it acted properly. The court referred to the original probation report, which had recommended the upper term, and stated it agreed with the reports recommendation. Only then did the court discuss the things defendant did after having been granted probation. The court may have been explaining its decision not to reinstate defendant on probation, or it simply may have expressing its feelings about defendant, but we do not view its words as demonstrating a mistaken belief that the cited conduct was a factor to be considered in selecting the appropriate term. Further, even if error occurred, it was harmless. There were two aggravating factors and no mitigating factors. Both defendants original probation officer and his probation officer at sentencing recommended the upper term. In short, there was no reason to impose anything less than the upper term. It therefore is not reasonably probable defendants conduct was the determinative factor in the courts choice of sentence. (People v. Avalos (1984) 37 Cal.3d 216, 233.)

As we find no error, or that any error was harmless, we also reject defendants claim his attorney rendered the ineffective assistance of counsel by failing to object to the courts mention of defendants actions after having received a grant of probation. A defendant seeking relief for the ineffective assistance of counsel must show, in part, that but for counsels deficient performance, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687.) That is not the case here.

III.

Penalty Assessments

The court imposed a laboratory analysis fee on defendant pursuant to Health and Safety Code section 11372.5. It imposed a drug program fee pursuant to Health and Safety Code section 11372.7. The court further imposed penalty assessments on these fees. Defendant concedes the fees properly were imposed, but contends the penalty assessments were improper.

Additional penalties or assessments are imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses. (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694 (Sierra), citing Pen. Code,  1464 & Gov. Code,  76000.) Defendant contends the penalties at issue here were improper because they were imposed on a fee and not on a fine, penalty or forfeiture. The court in Sierra addressed a similar argument in connection with Health and Safety Code section 11372.7, subdivision (a), which provides: Except as otherwise provided in subdivision (b) or (e), each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law. The court in Sierra pointed out that by referring to any other penalty, subdivision (a) describes itself as both a fine and/or a penalty, concluding that the fee required by the statute is indeed a fine or penalty and therefore subject to the additional penalty mandated by Penal Code section 1464. (Sierra, at pp. 1694-1695.) The court in People v. Martinez (1998) 65 Cal.App.4th 1511, 1522, followed the same analysis in connection with Health and Safety Code section 11372.5. We agree, and therefore conclude the additional penalties properly were imposed.

Defendant contends this conclusion is inconsistent with the reasoning and decision in People v. Vega (2005) 130 Cal.App.4th 183 (Vega). The Vega defendants were convicted of conspiracy to transport cocaine and conspiracy to possess cocaine for sale. (Id. at pp. 186-187.) The issue was whether the laboratory fee required by Health and Safety Code section 11372.5 should be imposed on conspiracy convictions. The statute requires the imposition of a laboratory fee on persons convicted of transportation of cocaine, or of possession of cocaine for sale, but says nothing about persons convicted of conspiracy to commit those crimes. (Id. at pp. 193-194.) The court considered the effect of Penal Code section 182, subdivision (a), which provides (with some exceptions not relevant here) when the defendants have been convicted of conspiring to commit a felony they shall be punished in the same manner and to the same extent as is provided for the punishment of that felony.  The court therefore viewed the question as whether the fee imposed under Health and Safety Code section 11372.5 is a punishment. (Id. at p. 194.) It found the fee is not punishment, reasoning in part that the purpose for imposing the fee is not to exact retribution or deterrence, but instead to defray administrative costs. (Id. at p. 195.) The Vega courts finding that a laboratory fee is not a punishment for purposes of liability for conspiracy does not affect the issue presented here: whether the fee is a penalty for purposes of imposing additional penalty assessments. As the Sierra court found, the fee is indeed a penalty under the wording of the statute itself. It is of little matter that it might not also be viewed as punishment.

Disposition

The judgment is affirmed.

________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

MARGULIES, J.

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[1] As we find the court was entitled to consider all aggravating factors, we need not consider whether defendants performance on probation falls under the broad definition of recidivism. (See People v. Yim (2007) 152 Cal.App.4th 366, 370-371, reasoning that a defendants poor performance on parole falls under the recidivism exception.)