P. v. Evins

Filed 6/21/07 P. v. Evins CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

A jury convicted James Evins of three counts of possessing a controlled substance (Health & Saf. Code,  11377, subd. (a)), one count of being under the influence of a controlled substance (Health & Saf. Code,  11350, subd. (a)), and one count of petty theft (Pen. Code,  484). Evins admitted two prior strikes (Pen. Code,  667, subds. (b)-(i), 1170.12, 668) and committing a felony while released on bail in two counts

(Pen. Code,  12022.1, subd. (b)). The court struck one prior strike and sentenced him to prison for eight years: concurrent terms of double the three-year upper term on the convictions of possessing a controlled substance enhanced by a two-year term for committing a crime while released on bail or his own recognizance. The court indicated it would impose concurrent terms on the being under the influence and petty theft convictions but the record does not reflect it sentenced Evins on these two convictions.

Appointed appellate counsel initially filed a brief setting forth the evidence in the superior court and presenting no argument for reversal but requesting this court to review the record for error as mandated by People v. Wende(1979) 25 Cal.3d 436. We granted Evins permission to file a brief on his own behalf. He did not respond. We then requested additional briefing on the issue of whether the trial court erred in imposing a sentence of double the upper term. Appointed counsel argues imposition of an upper term sentence violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 864, 127 S.Ct. 856, 860]. We affirm.

FACTS

Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. On August 9, 2005, Evins was riding a bicycle in Escondido and stopped to talk to Officer Hundley. Evins told Hundley that he was being followed. After checking the area, Hundley determined Evins was paranoid and somewhat delusional. Hundley detained Evins for a mental health evaluation and radioed for assistance from Officer Ronnebeck who was a member of the Psychological Response Team. Officer Ronnebeck took Evins into custody for a mental health evaluation and found in Evins's pants pocket two plastic baggies containing 12.27 grams of methamphetamine.

On August 20, 2005, Evins entered the Mi Pueblo market in Escondido. He wore a security guard uniform and acted suspiciously. The store manager called the owner, who told him to call the police. Officer Garcia responded to the call. Garcia approached Evins at a nearby Albertsons market. Evins held a paper bag that contained documents missing from Mi Pueblo market and 3.65 grams of methamphetamine.

On December 24, 2005, Escondido police Officer Sinnott responded to a call reporting a person acting strangely outside a room at the Howard Johnson Motel. Sinnott saw that Evins was agitated and sweating and repeatedly told Sinnott that small people from the room were trying to climb up his legs. Because of Evins's rapid pulse rate, lack of ocular response to light, sweating, talkativeness, rapid speech, and delusions, Officer Sinnott believed Evins was under the influence of a controlled substance. During a search incident to Evins's arrest, officers found a plastic bag containing 1.15 grams of methamphetamine. A blood sample taken from Evins after his arrest revealed the presence of amphetamine and methamphetamine in his system.

The probation report listed four factors in aggravation: taking advantage of a position of trust, numerous prior convictions as an adult, service of a prison term, and unsatisfactory performance on probation. When sentencing Evins, however, the trial court mentioned only the "the nature of [Evins's] criminal record, the multiplicity of the offenses, and the commission of offenses while [Evins] was on probation."

DISCUSSION

Applicable Law

An individual charged with a crime has a constitutional right to have a jury determine proof of the crime beyond a reasonable doubt. (United States v. Booker (2005) 543 U.S. 220, 230 (Booker).) This constitutional right encompasses not only a jury's determination by a reasonable doubt of proof of all the elements of the crime, but also all other factors, except the fact of a prior conviction, that increase punishment for the crime beyond the statutory maximum even when these factors are labeled as sentencing factors rather than as elements of the crime. (Cunningham, supra, at p. ___ [127 S.CT. at p. 864]; Booker, supra, 543 U.S. at p. 231; Blakely v. Washington (2004) 542 U.S. 296, 301-302 (Blakely).)

The statutory maximum "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he [or she] may impose without any additional findings." (Blakely, supra, 542 U.S. at pp. 303-304.) In Cunningham, supra, the United States Supreme Court held the statutory maximum in California's sentencing scheme is the middle term. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 871].) The Supreme Court held the mandatory imposition in California of an upper term based on "aggravating factors" was unconstitutional when it involved fact-finding by a judge using a preponderance of the evidence standard. (Id. at p. 870.) According to the Supreme Court, factors mandating increased punishment essentially define variants of the charged crime so those factors must be found by a jury or admitted by a defendant before they may be used to increase a defendant's punishment beyond the statutory maximum. (See Jones v. United States (1999) 526 U.S. 227, 229, 235, 251-252 [statute containing various factors increasing punishment established three separate offenses].) Thus, for example, questions as to whether the offense was a hate crime or involved great bodily injury must be submitted to a jury and proven beyond a reasonable doubt or admitted by the defendant before those facts may mandate increased punishment. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [finding that offense qualified as a "hate crime" under a statute authorizing an extended prison term could not be made by a judge using a preponderance of the evidence standard]; Jones v. United States, supra, 526 U.S. at pp. 251-252 [carjacking statute imposing different punishments depending on whether serious injury or death occurred established three offenses and findings on serious injury or death were required to be made by a jury].)

The one factor that the Supreme Court has authorized to increase punishment based on judicial fact-finding using a preponderance of the evidence standard is "the fact of a prior conviction." (Blakely, supra, 542 U.S. at p. 301.) The United States Supreme Court in Almendarez-Torres v. United States (1998) 523 U.S. 224, 230 (Almendarez-Torres), described the fact of a prior conviction as being "as typical a sentencing factor as one might imagine." The Court explained:

"[R]ecidivism is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence. [Citations.] Consistent with this tradition, the Court said long ago that a State need not allege a defendant's prior conviction in the indictment or information which alleges the elements of an underlying crime, even though the conviction was 'necessary to bring the case within the statute.' [Citation.] That conclusion followed, the Court said, from 'the distinct nature of the issue,' and the fact that recidivism 'does not relate to the commission of the offense, but goes to the punishment only, and therefore . . . may be subsequently decided.' [Citation.] The Court has not deviated from this view." (Id. at pp. 243-244.)

Further, the Supreme Court has recognized that use of a prior conviction to increase a sentence is "unlike virtually any other consideration used to enlarge the possible penalty for an offense, . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (Jones v. United States, supra, 526 U.S. at p. 249.)

Questions remain, however, about the scope of the "fact of a prior conviction." (See, e.g., Doeschner, A Narrowing of the Prior Conviction Exception (2006) 71 Brooklyn L.Rev. 1333.) Under a broad construction, the exception could encompass a wide array of facts relating to the defendant and his criminal record. Under a narrow construction, the exception would be strictly limited to the bare fact of a prior conviction. As we read Almendarez-Torres and the subsequent Supreme Court decisions, "the fact of a prior conviction" is not strictly limited to the bare fact that a defendant has suffered a criminal conviction. The Supreme Court's emphasis on recidivism as a traditional sentencing factor supports a conclusion the exception applies also to other recidivist conduct that is directly derived from prior convictions. This interpretation is consistent with the California Supreme Court's view. Our Supreme Court has stated "the Almendarez-Torres exception is not limited simply to the bare fact of a defendant's conviction." (People v. McGee (2006) 38 Cal.4th 682, 704 (McGee).)

The McGee decision addressed judicial fact-finding and held it was proper for a trial judge to determine if an out-of-state robbery conviction is a serious felony under California law. (McGee, supra, 38 Cal.4th at p. 709.) In a post-Cunningham case, a Court of Appeal, relying in part on McGee, concluded a "trial court may impose an upper term based on a defendant's prior convictions and other recidivist-related factors such as ' " 'the nature and circumstances of his [or her] criminal conduct.' " ' "(People v. Banks (2007) 149 Cal.App.4th 969, 973.)

Our approach does not limit the exception to the strict fact of a prior conviction but includes recidivist based facts traditionally within the court's purview. Thus, given the Supreme Court's holding in McGee, the Almendarez-Torres exception would encompass a judge's determination an upper term is warranted not only because the defendant has prior convictions but also because the defendant's criminal record contains certain convictions that are statutorily defined as serious or violent and show a pattern of increasingly serious or violent offenses.

Other aggravating factors, depending on the circumstances in a particular case, would also come within the purview of the prior Almendarez-Torres exception. For example, a defendant's poor performance on probation or parole is a factor in aggravation. (Cal. Rules of Court, rule 4.421(b)(4).) Poor performance may be due to a defendant's failure to regularly report to a parole officer or to drug test as required by the conditions of his probation. In those circumstances, while the fact the defendant is on probation derives from a prior conviction, his poor performance does not involve recidivist conduct but a failure to comply with parole or probation conditions. However, a defendant's poor performance on parole or probation may be due to the defendant's commission of a new offense. In that situation, there is a direct correlation between the defendant's recidivism and the poor performance, and the defendant's poor performance would fall within the Almendarez-Torres exception.

The Issue May be Raised on Appeal

The People argue Evins forfeited his right to raise the issues of whether he was denied his constitutional right to have a jury determine aggravating factors beyond a reasonable doubt because he failed to raise the issue below. We disagree.

While a constitutional right may be forfeited by failure to timely assert the right in the trial court (see United States v. Olano (1993) 507 U.S. 725, 731), this principle does not apply here. In 2005, the California Supreme Court, in People v. Black (2005) 35 Cal.4th 1238 (Black), held constitutional California's sentencing scheme allowing a trial court to determine whether to impose the upper term based on aggravating facts the court found by a preponderance of the evidence. Here, the trial court sentenced Evins on April 11, 2006. The United States Supreme Court decided Cunningham on January 22, 2007. Thus, when the trial court sentenced Evins, it was compelled to apply the law as expressed in Black. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) To raise an issue on appeal, a party need not object in the trial court "where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237.) Evins did not forfeit the right to raise the Cunningham issue on appeal when it would have been futile to raise it in the trial court at the time of the sentencing hearing.

The Upper Term Was Properly Imposed

Evins argues imposition of the upper term was improper because the court relied on four aggravating factors, none of which were found true by a jury nor admitted by Evins and none of which fall within the Almendarez-Torres exception.

While it is true that the probation report listed four factors in aggravation: taking advantage of a position of trust, numerous prior convictions as an adult, service of a prison term, and unsatisfactory performance on probation, the trial court when sentencing Evins, referred only to the "the nature of [Evins's] criminal record, the multiplicity of the offenses, and the commission of offenses while [Evins] was on probation." Thus, the court did not rely on Evins having taken advantage of a position of trust a factor that clearly is outside the scope of the Almendarez-Torres exception when it sentenced Evins. Nor did the court rely on Evins serving a prior prison term. As to the two factors on which the court actually relied, we conclude those factors fall within the Almendarez-Torres exception and were properly utilized by the trial court to impose an upper term.

The first aggravating factor was that Evins had numerous prior offenses. This is just another way of saying the fact of prior convictions merited an upper term. This clearly falls within the Almendarez-Torres exception.

The second aggravating factor relied on by the trial court was that Evins had committed offenses while he was on probation. As we explained above, a defendant's poor performance on probation falls within the Almendarez-Torres exception when it is based on the defendant's commission of new offenses while on probation for a prior offense. In that situation, the aggravating factor is directly correlated with recidivism and the fact of a prior conviction. Here, since Evins's poor performance was due to his recidivist conduct while on probation, it falls within the Almendarez-Torres exception.

In sum, we conclude the trial court relied on two factors, both of which fell within the Almendarez-Torres exception. Therefore, these factors were not required to be found by a jury using a reasonable doubt standard or admitted by Evins. The upper term did not violate Cunningham.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

I CONCUR:

HALLER, J.

IRION, J., Dissenting.

In my view, the trial court's reliance on "the nature of [the defendant's] criminal record, the multiplicity of the offenses, and the commission of offenses while . . . on probation" does not fall within the "narrow exception to the general rule" announced in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 that "[o]ther 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." (Italics added; Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 864, 127 S.Ct. 856, 860] [federal constitution prohibits imposition of "a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant"].) Consequently, I would vacate the sentence and remand for resentencing.

IRION, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.