P. v. Eagles

Filed 10/22/07 P. v. Eagles CA5

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.

Allan Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

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In December 2004, pursuant to a plea agreement, appellant Kenneth Eagles pled no contest to one count of willfully failing to register as a sex offender. (Pen. Code, 290, subd. (g)(2).) In January 2005, the court suspended imposition of sentence and placed appellant on three years probation. The conditions of probation included that appellant serve one year in county jail and have no contact with the minor, alleged to be the victim in four counts of unlawful sexual intercourse with a minor (Pen. Code, 261.5) that were dismissed pursuant to the plea agreement.

In March 2006, following a probation revocation hearing, the court found appellant violated the no-contact condition of probation. In April 2006, the court imposed the three-year upper term on the instant offense and awarded appellant 420 days of presentence credit.

Appellant appealed. His sole contention on appeal was that he was denied his rights to trial by jury and due process of law under the United States Constitution because the trial court imposed the upper term based on aggravating factors that were not found by a jury beyond a reasonable doubt. In March 2007, this court affirmed the judgment of conviction but vacated the sentence. Upon petition by the People, the California Supreme Court granted review, and in September 2007 it transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).

We hereby vacate our March 2007 decision. Upon reconsideration, in light of Black II and Sandoval, we issue the following decision, in which we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants Criminal History

The report of the probation officer indicates the following. In 1971, when appellant was 18 years old, he was convicted in New Mexico of sale of marijuana. He was placed on, and successfully completed, five years probation. In 1996, he was convicted of incest (Pen. Code, 285) and was sentenced to a three-year prison term. Between April 1998, when he was first paroled, and April 2002, when he was discharged, he violated his parole on four occasions.

Sentencing

At the April 2006 sentencing hearing, the court found as circumstances in mitigation that appellant successfully completed probation in his 1971 case, and that in the instant case, he had entered his plea at an early stage in the proceedings. As circumstances in aggravation, the court found that appellant took advantage of a position of trust, his prior conviction as an adult is significant, he had served a prison term for a prior conviction and his performance on parole had been unsatisfactory. The court further found that the circumstances in aggravation outweighed those in mitigation, and on that basis imposed the upper term.

DISCUSSION

The Law

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held, 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. (Id. at p. 490.) The high court reaffirmed this rule in Blakely v. Washington (2004) 542 U.S. 296, 301 [124 S.Ct. 2531, 2536] (Blakely).

In 2005, in People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court held that the imposition of upper terms under the version of Californias Determinate Sentence Law then in effect^[1]did not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore the judicial fact finding that occurs when a judge exercises discretion to impose an upper term sentence . . . does not implicate a defendants Sixth Amendment right to a jury trial. (Id. at p. 1244.)

Subsequently, in January 2007, the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) considered whether the DSL violates the constitutional principle set forth in Apprendi and Blakely. Concluding that Black I was wrongly decided, the high court held: Under Californias DSL, an upper term sentence may imposed only when the trial judge finds an aggravating circumstance. [Citation.] [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Citation.] ([T]he statutory maximum is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (emphasis in original)). Because 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, [citation], the DSL violates [the] bright-line rule [announced in Apprendi and reaffirmed in Blakely]: 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.] (Cunningham, supra, 127 S.Ct. at p. 868.)

In July 2007, the California Supreme Court, in People v. Black, supra, 41 Cal.4th 799, (Black II), held that the exception to the jury trial requirement recognized in Apprendi, Blakely, and Cunningham for the fact of a prior conviction (Black II, supra, 41 Cal.4th at p. 818) applies not only to the fact that a conviction occurred, but also to determinations that a defendant has suffered numerous prior convictions of increasing seriousness (id. pp. 819-820).

The Black II court also held the existence of even one aggravating factor, properly found in accordance with Cunningham and its antecedents, is sufficient to make a defendant constitutionally eligible for an upper term sentence. (Id. at p. 813.) In such a case, the court may then rely upon other factors not determined in accordance with Cunningham, in its exercise of sentencing discretion. (Ibid.) The imposition of an upper term under those circumstances does not violate the defendants constitutional right to trial by jury. (Id. at p. 816.)

In Sandoval, decided the same day as Black II, our Supreme Court held that the trial court, in imposing an upper term based on aggravating factors that were based on the facts of the underlying crime, none of which were admitted by the defendant or found true by the jury, violated the defendants Sixth Amendment right to trial by jury. (Sandoval, supra, 41 Cal.4th at pp. 837-838.) The court also held the error was not harmless. (Id. at p. 843.) Finally, the court rejected the Peoples argument that the defendants challenge to his sentence was forfeited by the defendants failure to object at sentencing, because the defendant was sentenced after the decision in Black I, which was binding on trial courts, and therefore a request for a jury trial would have been futile. (Id. at p. 837, fn. 4.)

Forfeiture

Appellant did not object in the trial court to the imposition of the upper term. However, he was sentenced in 2006, after the decision in Black I and before the Supreme Courts decision in Cunningham. Therefore, notwithstanding appellants failure to object, his challenge to the imposition of the upper term is properly before us. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)

The Merits

As indicated above, the trial court in the instant case imposed the upper term based, inter alia, on its finding that appellants prior conviction as an adult is

significant . The court in Black II, in concluding that the fact that the defendant had suffered multiple prior convictions of increasing circumstances came within the fact-of-a-prior-conviction exception to the jury trial requirement, reasoned as follows: [N]umerous decisions from other jurisdictions have interpreted the [fact-of-a-prior-conviction] exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.] [] The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. (Black II, supra, 41 Cal.4th at pp. 819-820.)

The fact of appellants prior adult conviction and its signfican[ce] can be similarly determined. Therefore, under BlackII, the determination that appellant suffered a significant prior conviction came within the fact-of-a-prior-conviction exception to the Apprendi/Blakely/Cunningham jury trial requirement. And because one aggravating factor was established in accordance with constitutional requirements, the imposition of the upper term did not violate appellants right under the United States Constitution to trial by jury. (Id. at p. 813.)

DISPOSITION

The judgment is affirmed.

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^*Before Levy, Acting P.J., Gomes, J., Kane, J.

^[1] The Legislature has amended the DSL. (Stats. 2007, ch. 3, 2, eff. Mar. 30, 2007.) All references to the DSL are to that statute as it read prior to this amendment.