P. v. Fisher

Filed 9/7/07 P. v. Fisher CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In 2006 appellant Todd Fisher pleaded guilty to possession of heroin for sale, for which he was placed on probation. Thereafter the court found him in violation of probation, revoked that disposition and imposed the upper term sentence of four years. Appellant argues that imposition of the upper term sentence violated his rights to a jury trial and to due process. We affirm.

I. FACTUAL BACKGROUND

A. Underlying Offense

A police officer detained appellant early in the morning of March 14, 2006, on Leavenworth Street in San Franciscos Tenderloin District. Appellant admitted to the officer that he was on probation, subject to a search condition. Searching appellant, the officer found 18 bindles of suspected heroin and $610 in his pocket and sock.

B. Violating Offense

In August 2006 a police officer detained appellant on the same block in the Tenderloin. After learning appellant was on probation with a search condition, the officer conducted a search, locating 14 pieces of a black tar-like substance in his rear pocket. A booking search revealed an additional 23 pieces of the substance. Testing by the crime lab identified the substance as heroin.

C. Sentencing

The court revoked probation and, concluding that circumstances in aggravation outweighed circumstances in mitigation, sentenced appellant to the upper term of four years. The court identified several aggravating factors, as follows: (1) the crime was carried out in a manner that indicated planning; (2) appellants prior convictions as an adult were numerous;^[1](3) his prior performance on probation and parole was unsatisfactory; (4) he was on probation when committing the revoking crime; and (5) appellant served a prior prison term. The court found one mitigating factor, namely appellant acknowledged wrongdoing at an early stage of the proceeding.

II. DISCUSSION

Appellant argues that under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), the trial court erroneously imposed an upper term sentence based on its own factual findings, made under a preponderance of the evidence standard. There was no sentencing error.

Earlier this year in Cunningham, the United States Supreme Court struck down the upper term sentencing provisions of our determinate sentencing law (DSL): Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 859].) The high court also reiterated the bright-line rule that under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Id. at p. __ [127 S.Ct. at pp. 863-864].) This bright-line jury trial rule is subject to a limited exception for the fact of a prior conviction. (Apprendi v. New Jersey (2000) 530 U.S. 466, 488-490.)

The California Supreme Court recently handed down its opinion in People v. Black (2007) 41 Cal.4th 799 (Black),^[2]on remand from The United States Supreme Court for reconsideration in light of Cunningham. The Black court held that so 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. . . . [] . . . Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely,^[[3]] the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Id. at p. 813.) Thus, the issue in each case, including the instant case, is whether the trial courts fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed. (Id. at p. 815.) Concluding, the court in Black stated: [I]mposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id. at p. 816.)

Here the trial court recited as a compelling aggravating factor that appellant suffered numerous prior convictions as an adult. (Cal. Rules of Court, rule 4.421(b)(2).) Appellants prior convictions are numerous. (Black, supra, 41 Cal.4th at p. 818.) Appellant emphasizes the narrowness of the prior conviction exception, arguing that it does not embrace a determination as to whether the sheer number of a defendants prior convictions can be characterized as numerous. The Black court rejected this same argument, holding that a defendant does not have a right to a jury trial on whether such convictions are numerous or increasingly serious. (Id. at pp. 819-820.) Moreover, the prior conviction exception allows the trial court to decide whether a defendant has served a prior prison term. (Id. at p. 819.) Here, the court also recited that appellant served a prior prison term. (Cal. Rules of Court, rule 4.421(b)(3).) Additionally, the court noted that appellant had not succeeded on probation or parole and he was on probation when he committed the violating offense.

III. CONCLUSION AND DISPOSITION

In light of Black, it is clear that the trial court lawfully imposed the upper term sentence based on the record of appellants prior convictions and prison term. That the court also found that the offense involved planningan aggravating factor appellant contends was not supported by substantial evidence and violated the dual use of facts prohibitiondoes not undermine the validity of the upper term sentence. The presence of one legally sufficient aggravating circumstance is enough to save a sentence from constitutional impairment. (Black, supra, 41 Cal.4th at p. 816.) Accordingly, we affirm the judgment.

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Reardon, J.

We concur:

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Ruvolo, P.J.

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Rivera, J.

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^[1]They were: two drug-related felony convictions and three misdemeanor convictions.

^[2]Briefing in this case finished just before the decision in Black was announced.

^[3]Referring to Blakely v. Washington (2004) 542 U.S. 296, 303, which defined the statutory maximum for purposes of Apprendis bright-line rule as the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Thus, the relevant 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. (Id. at pp. 303-304.)