P. v. Fuller

Filed 7/12/07 P. v. Fuller CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Gary T. Friedman, Judge.

Hardesty and Moore and John Hardesty, 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, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

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We filed an opinion in this case on March 7, 2006. The California Supreme Court denied review. The United States Supreme Court granted certiorari. On April 4, 2007, it vacated the judgment and remanded the case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).

Defendant argues that his sentence was erroneous under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) as applied in Cunningham. Having considered the case in light of Cunningham, we conclude that the sentence was proper. Any sentencing error under Cunningham or Blakely was harmless. We affirm the judgment.

BACKGROUND

On June 10, 2003, defendant was convicted of making a criminal threat (Pen. Code,  422) and use of a deadly weapon (Pen. Code,  12022). In addition, it was found that defendant had suffered two prior serious felony convictions within the meaning of the Three Strikes Law.

On August 12, 2004, this court reversed the finding as to one of the prior strikes and remanded the matter to the trial court for retrial of the strike or for resentencing if the People did not seek retrial. In all other respects, the judgment was affirmed.

On remand, the People did not seek retrial. On December 30, 2004, the court held a hearing for resentencing and, after finding circumstances in aggravation and mitigation, ordered that defendant serve a sentence of seven years, calculated as follows: the upper term of three years for making a criminal threat, which was doubled pursuant to Penal Code section 667, subdivision (e), and a one-year enhancement pursuant to Penal Code section 12022, subdivision (b)(1).

On January 19, 2005, defendant filed a Notice of Appeal.

DISCUSSION

Defendant argues that the imposition of the upper term violated the Sixth Amendment as interpreted in Blakely and Cunningham. In Blakely, the Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendants Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with deliberate cruelty and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: 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. (Blakely v. Washington, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the states sentencing law did not allow the sentence to exceed 53 months without judicial factfinding. Our precedents make clear that the statutory maximum for Apprendi purposes 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. (Id. at p. 303.) The court continued:

In other words, 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. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, [citation], and the judge exceeds his proper authority. (Blakely v. Washington, supra, 542 U.S. at pp. 303-304.)

On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law is unconstitutional, therefore, unless it is based on prior convictions, facts found by the jury, or facts admitted by the defendant.

We need not decide whether the imposition of the upper term ran afoul of the Supreme Courts precedents in this case. Any error was harmless.

The courts findings in support of the sentence it imposed were these:

In regards to the appropriate sentencing in this case, I feel based on my review of the facts and the file in this matter and the appellate opinion as well sending the matter back on remand that looking at all the factors, factors in mitigation and the factors in aggravation, which Ill now outline, that the appropriate sentence for public safety and commensurate with the gravity of the crime, would be the upper term of three years doubled plus the one year use of the deadly weapon, the knife, for a total of seven years would be appropriate less credit for time served.

So we make the following findings in mitigation and aggravation: In mitigation we find defendants prior performance on misdemeanor probation in 1991 [and] state parole was satisfactory in that he did not reoffend or sustain a violation.

Factors in aggravation, one, the defendant served a prior prison term similar to what is charged in this case, and then the defendants prior conviction[s], number two, as an adult are numerous. And, thirdly, the defendant was onfrom a review of his criminal record as summarized in the probation report, he was on two separate grants of misdemeanor probation when the [instant] crime was committed[.] [I] find that the factors in aggravation outweigh the nonexisten[t] factors in mitigation, the defendant is ineligible for a grant of felony probation pursuant to the strike provisions of Penal Code section 667(c)(2) and upon consideration of defendants pattern of aggression, as reflected in his criminal record from 85 to 95 and currently, he would be considered, in my opinion, as probation appropriately concludes, unsuitable for a grant of probation even if he were eligible. And because he had the one prior strike, the 95 strike for criminal threats[.] [T]hat 95 strike involved threatening an animal control officer, threatening to kill the animal control officer and officers as noted on Page 3 of the probation report.

Because of that strike we would double the three year prison upper term for the PC 422 with the finding of being true, the one strike, the 95 strike. So sentencing probation is denied for the reason stated above. The defendant is sentenced to the Department of Corrections for the upper term of six years to be enhanced by one year pursuant to PC 12022(b)(1) for a total term of seven years.

All of the aggravating factors the court relied on presupposed prior convictions: prior prison term, numerous prior adult convictions, and probationary status at the time of the current offense. (The court also described defendants criminal record as a pattern of aggression, but used this as a reason for denying probation, not for imposing the upper term.) At least one of thesedefendants numerous prior convictions as an adultcannot meaningfully be distinguished from Blakelys formulation, approving the use of the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several.

Defendant admitted a second factorthe prior prison termin the sentencing statement he filed on December 27, 2004. This statement explains that defendant was convicted of making a criminal threat (Pen. Code,  422) in 1995. In that case, he was at first found mentally incompetent and sent to a state hospital. Once criminal proceedings were reinstated, his statement continued, he was given the low term doubled for 32 months. He was paroled in 1997 and satisfactorily spent three (3) years on parole before being discharged suffering no violations. As defendant could not have been paroled without serving part of a sentence, these comments amount to an admission that defendant served a prior prison term.

Assuming it was error for the trial court to rely the remaining factor (probationary status at the time of the current offense), we are confident that the error was harmless beyond a reasonable doubt under the circumstances of this case. (Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546, 2550, 2551, 2553]; Chapman v. California (1967) 386 U.S. 18.) Because defendants criminal history was the dominant fact in the background of all the aggravating factors the court found in support of the upper term, there is no significant likelihood that the court would have imposed a different sentence if it had been directed that it could rely only on the fact of a prior conviction in imposing the upper term. This would be our conclusion even if defendant had not admitted the prior prison term and even if reliance on that factor consequently was error.

Defendants brief points to comments the trial court made about defendants dangerousness. For instance, the court rhetorically asked defense counsel whether, in this case, public safety is best served by imposing the highest available sentence. Also, as noted above, the court stated that the sentence it was imposing was the appropriate sentence for public safety. Defendant contends that these should be regarded as factors in aggravation relied on by the court and that they constitute additional judicial findings in contravention of Blakely and Cunningham. We do not interpret them that way; the court clearly enumerated the factors it was relying on. Further, even if they were additional aggravating factors, we would still conclude that any error in relying on them was harmless. Nothing about these comments undermines our view that, beyond a reasonable doubt, court would have imposed the same sentence if it had been directed that it could rely only on the fact of a prior conviction in imposing the upper term.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Wiseman, J., and Gomes, J.