P. v. Hammond

Filed 7/31/07 P. v. Hammond CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant David Fela Iman Hammond pleaded no contest to making a criminal threat (Pen. Code,  422).[1] The trial court sentenced him to the upper term of three years, but suspended execution of the sentence and placed defendant on probation. Defendant argues that the imposition of the upper term violates Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because the aggravating factor of defendants record of violence was neither admitted by defendant nor submitted to a jury. We disagree because the other aggravating factor, defendants felony conviction record, is based on recidivism and thus falls outside of the rule of Cunningham. The record in this case supports this aggravating factor as sufficient to justify the upper term.

I. FACTS & PROCEDURAL BACKGROUND

We take the facts from the transcript of the preliminary hearing. On June 2, 2006, about 9:30 a.m., Santa Rosa Police Detective Jesse Cude was working undercover. He was sitting in an unmarked Chevy Blazer in the parking lot of a Stop N Save market. Defendant and another man were in a Buick Regal and started yelling at Cude. The detective drove out of the parking lot. The Regal followed him. At a stop sign, the Regal came up behind him. Someone in the Regal yelled, Youre in Crip territory, and the Regal rear-ended the Blazer. The Regal then pulled along side, and defendant and his companion threatened to kill detective Cude. The detective radioed for help and defendant and his companion were arrested. Defendant told Cude he did not know Cude was a police officer.

The People filed an information charging defendant with assault with a deadly weapon and by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), count 1; making a criminal threat ( 422), count 2; resisting an officer ( 69), count 3; using a motor vehicle to evade a police officer (Veh. Code,  2800.2), count 4; misdemeanor resisting arrest ( 148, subd. (a)(1)), count 5; and misdemeanor reckless driving (Veh. Code,  23103, subd. (a)), count 6.

Defendant pleaded no contest to count 2, in exchange for dismissal of the remaining counts. The trial court imposed the upper term of three years, based on two aggravating factors, defendants record of violence and his record of other felony convictions . . . . The record of violence factor is apparently based on an unadjudicated charge of domestic violence.

II. DISCUSSION

Defendant contends that the upper term violates Cunningham because the aggravating factor of his record of violence was neither admitted by defendant nor submitted to a jury. To the extent that this factor was based on the facts underlying the domestic violence charge, defendant may have a point. But the question is academic when the record is reviewed for convictions. Defendants considerable record of prior convictions, which includes violent felonies, relates to recidivism and amply supports the imposition of the upper term as we now explain.

An upper term may not be imposed based on facts unrelated to recidivism which were neither admitted by the defendant nor found true by the jury. (Cunningham, supra, 127 S.Ct. at p. 860; see People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Defendant concedes that his record of prior convictions falls outside the rule of Cunningham and he was not entitled to a jury trial on the fact of his prior convictions.

Defendant was only 23 years old at the time of sentencing. Despite his youth, he amassed a considerable record of convictions involving violence. He has two juvenile adjudications for violent offenses: battery in 1997, and assault with a deadly weapon in 2000. He has three adult convictions for violent offenses: domestic violence in 2001and 2004, and resisting arrest in 2005. He also has a 2005 conviction for carrying a concealed dirk or dagger.

The aggravating factor of defendants multiple prior felony convictions relates to recidivism. That factor is based on undisputed, objective facts readily determined by a trial court from official records of prior convictions. The factor is not a subjective, qualitative factor such as callousness, dangerousness, or vulnerability of the victim.

The aggravating factor of defendants prior convictions is sufficient to support the upper term. (See People v. Cruz (1995) 38 Cal.App.4th 427, 433.)[2] The Supreme Courts recent Black decision is determinative. (People v. Black ___ Cal.4th ___ (S126182, July 19, 2007) [2007 D.A.R. 11041, 11047-11049].)

III. DISPOSITION

The judgment of conviction and sentence are affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Margulies, J.

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[1] Subsequent statutory references are to the Penal Code unless otherwise indicated.

[2] For reasons we need not discuss, defendants reliance on the plurality opinion in Shepard v. United States (2005) 544 U.S. 13, 25-26, is misplaced. (See discussion in People v. McGee (2006) 38 Cal.4th 682, 706-709.)