P. v. Cheeks

Filed 6/21/07 P. v. Cheeks CA1/2

Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

On April 12, 2005, Betty Cheeks pled guilty to one count of welfare fraud (Welf. & Inst. Code,  10980) and 11 counts of issuing checks with insufficient funds (Pen. Code,  476, subd. (a)). The facts relating to these offenses are not relevant to the issue on appeal.

On May 16, 2005, the superior court imposed an upper-term three-year sentence for the welfare fraud offense alleged in count one, and consecutive eight-month terms, which constituted one-third of the mid-term, for each of the eleven subordinate counts. The total sentence imposed was ten years and four months in state prison. Cheekss sole contention on appeal is that her sentence violated her federal constitutional rights to due process and a jury trial as recognized by the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). By an opinion issued on May 1, 2006, we affirmed her conviction based on our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238. Because that opinion has effectively been overturned by the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the present case was remanded to this court for reconsideration. After reconsideration, and because of the bases relied on by the trial court for the sentence it imposed, we again affirm.

II. DISCUSSION

The controlling principle in this whole area was announced by the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) which states: 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.

In Blakely, supra, 542 U.S. 296, the Supreme Court held that a Washington State court violated the Apprendi rule and denied a criminal defendant his constitutional right to a jury trial by increasing that defendants sentence for second-degree kidnapping from the standard range of 49 to 53 months to 90 months based on the trial courts finding that the defendant acted with  deliberate cruelty.  (Blakely, supra, 542 U.S. at pp. 303-304.) In reaching this conclusion, the court clarified that, for Apprendi purposes, the statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Ibid.)

Blakely raised concerns about the constitutionality of Californias Determinate Sentencing Law (DSL). Under our DSL, the maximum sentence a judge may impose for a conviction without making any additional findings is the middle term. Penal Code section 1170, subdivision (b), states that the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. Furthermore, California Rules of Court rule 4.420(b), states that [s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation. If, pursuant to Blakely, the statutory maximum sentence under Californias DLS is the middle term, then an upper term sentence based on aggravating circumstances, other than the fact of a prior conviction, that are found by the trial court rather than by a jury would violate the Apprendi rule.

The California Supreme Court attempted to resolve the constitutional issue in People v. Black (2005) 35 Cal.4th 1238 (Black). The Black court held that the judicial fact-finding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial. (Id. at p. 1244.) The court reasoned that, under Californias sentencing system, the upper term is the statutory maximum and a trial courts imposition of an upper term sentence does not violate a defendants right to a jury trial under the principles set forth in Apprendi, Blakely, and[United States v.] Booker [(2005)543 U.S 220]. (Black, supra, 35 Cal.4th at p. 1254.)

However, in Cunningham, the United States Supreme Court held that Californias DSL does violate the constitutional principle embodied in the Apprendi rule. Cunningham held that the DSL, by placing sentence-elevating fact-finding within the judges province, violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (127 S.Ct. at p. 860.) The court reasoned that, under the DSL, the middle term not the upper term is the relevant statutory maximum because (1) an upper term sentence can be imposed only if the judge finds aggravating circumstances, and (2) aggravating circumstances depend on facts found discretely and solely by the judge. Furthermore, the court found, [b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence not beyond a reasonable doubt, . . . the DSL violates Apprendis bright-line rule: Except for 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. [Citation.] (Id. at p. 868.)

However, here the trial court specifically noted, in imposing the upper term sentence, that appellant had a significant criminal history, and identified four aggravating factors under California Rules of Court, rule 4.421, namely, her 13 prior convictions, her service of several prior prison terms, and the fact that she was on probation at the time of the instance offenses and, previously, had been unsuccessful while on probation.

The requirement that a fact that increases a sentence beyond the statutory maximum must be found by a jury does not apply to the fact of a prior conviction. (Almendarez-Torres v. United States (1998) 523 U.S. 224; Apprendi, supra, 530 U.S. at pp. 488, 490; Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at p. 860.) This prior conviction exception to the Apprendi rule has been construed broadly to apply not just to the fact of the prior conviction, but to other issues relating to the defendants recidivism. (See, e.g., People v. Thomas (2001) 91 Cal.App.4th 212, 216-223.)

In our view, the several aggravating factors relied upon by the court to impose the upper term clearly fell within the prior conviction exception to the Apprendi rule.^[1] Further, those prior conviction aggravating factors did not in any way  relate to the commission of the offense, but goes to the punishment only . . . .  (Almendarez-Torrez v. United States, supra, 523 U.S. at p. 244, italics omitted.) Therefore, these factors did not need to be supported by jury findings.

Accordingly, we conclude that imposition of the aggravated term in this case did not violate appellants federal constitutional right to a jury trial under the Sixth Amendment or his right to due process under the Fourteenth Amendment as explicated in Blakely, supra, 542 U.S. 296 and Cunningham, supra, 127 S.Ct. 856.

III. DISPOSITION

The judgment and sentence are affirmed.

_________________________

Haerle, J.

We concur:

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Kline, P.J.

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Lambden, J.

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^[1]The same could be said for the defendants status as a probationer, a fact that can also be established by a review of the court record relating to the prior offense. However, the trial court did not specifically rely on this factor in imposing the upper term and therefore we do not rely upon it.