P. v. Johnson

Filed 9/27/07 P. v. Johnson CA1/4

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This court previously affirmed defendants convictions by jury trial for taking of a vehicle without the owners consent (Veh. Code,  10851, subd. (a)), possession of a firearm by a felon (Pen. Code,  12021.1, subd. (a)),[1]possession of ammunition by a felon ( 12316, subd. (b)(1)), possession of drug paraphernalia (Health & Saf. Code,  11364), and receiving stolen property ( 496, subd. (a)), and remittitur was issued on January 19, 2007. (People v. Johnson (Oct. 30, 2006, A111689) [nonpub. opn.] (Johnson I).) Our Supreme Court denied review. On April 16, 2007, the United States Supreme Court granted certiorari, vacated the judgment, and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham). This court ordered remittitur recalled, and requested supplemental briefing to address the effect, if any, of Cunningham on the issues presented in this appeal. Defendant argues in his supplemental brief that his sentence violated Cunningham. We disagree and again affirm.

I.
Factual and Procedural
Background

The evidence adduced at defendants trial was set forth in this courts previous opinion, and may be briefly summarized here. Defendant had made arrangements to purchase a vehicle from the victim, Everett Robinson. Defendant met the victim at the home of defendants grandmother in East Palo Alto, and test drove the car. After the test drive, defendant went into his grandmothers house while the victim remained in the front seat of the car. Defendant later returned to the car, and got into the backseat. The victim heard something click, looked back, and saw that defendant was loading a pistol that appeared to be a .45-caliber semiautomatic. The victim was fearful, and left the car. Defendant drove off in the car.

Defendant later returned with another male to his grandmothers house. The victim told defendant that he wanted the car back; defendant pointed the gun at him and told him to stay where he was. The victim eventually called 911, and also flagged down two police officers who were in the area and reported the crime.

Defendant was charged by information with carjacking ( 215, subd. (a)), with a use of a firearm allegation pursuant to section 12022.53, subdivision (b), possession of a firearm by a felon ( 12021.1, subd. (a)), possession of ammunition by a felon ( 12316, subd. (b)(1)), possession of drug paraphernalia (Health & Saf. Code,  11364), and receiving stolen property ( 496, subd. (a)). The information also alleged a prior strike conviction, pursuant to section 1170.12, subdivision (c)(1), a serious felony prior conviction, pursuant to section 667, subdivision (a), and a violent prior prison conviction, pursuant to section 667.5, subdivision (a). Following a jury trial, defendant was convicted of all charged crimes except carjacking, but found guilty of the lesser included offense of taking of a vehicle without the owners permission. (Veh. Code,  10851, subd. (a).) Defendant waived his right to a jury trial on the prior conviction; the court found true the strike prior allegation and a prison prior pursuant to sections 667.5, subdivision (b) and 1170.12, subdivision (c)(1) (both were in connection with a robbery conviction).[2]

The People submitted a sentencing statement that argued that there were no circumstances in mitigation (Cal. Rules of Court, rule 4.423)[3], and that there were three factors in aggravation: (1) defendant engaged in violent conduct in connection with a 1997 crime (rule 4.421(b)(1)), (2) defendant served a prison term (rule 4.421(b)(3)), and (3) defendants performance on parole was unsatisfactory (rule 4.421(b)(5)). The court also received a probation report that showed defendant was previously convicted (1) in 1990 for misdemeanor possession of paraphernalia for unlawful use (Health & Saf. Code,  11364), (2) in 1992 in Washington state for the unlawful display/carrying of a weapon, (3) in 1995 in Washington state for assault, criminal trespass, and obstruction of a law enforcement officer, and (4) in 1998 for second degree robbery ( 212.5, subd (c)). The probation report also listed two parole violations following the second degree robbery conviction. The Peoples sentencing statement indicated that defendant was discharged from parole on November 22, 2003, 13 months before he committed the crimes charged in this case.

At the sentencing hearing, the trial court stated that it had read and considered the probation departments report, and focused on defendants recidivism, as well as his prior performance on parole. The court agreed with the characterization of defendants performance on parole articulated by the deputy district attorney, that defendant discharged from parole at statutory maximum having done all parole violations and all the revocations and all the returns into custody that burned up his parole. [Defendants compliance with parole] was zero. Not good, satisfactory . . . . In sentencing defendant, the trial court stated: Im going to conclude that the principle term is the [section] 12021.1 [possession of a firearm by a felon], Mr. Johnson, in light of the fact that it is an ex-felon and its the more serious offense in my mind given your past history. [] I also find that you have been unsuccessful on parole and/or probation as a result of it, of your past misbehavior. [] Therefore, Im going to sentence you to the aggravated term . . . . Defendant was sentenced to a total of nine years, eight months in state prison. The sentence consisted of the aggravated term of three years on the possession of a firearm by a felon charge, doubled to six years due to defendants prior strike, plus two consecutive terms of eight months each, doubled to 16 months each, for the taking of a vehicle without the owners permission charge and the possession of ammunition by a felon charge. The trial court imposed a concurrent six-month term for the misdemeanor possession of drug paraphernalia charge, and imposed an eight-month sentence for the receiving stolen property charge, but stayed it pursuant to section 654. The court also imposed one year for the prison prior.

In Johnson I, this court affirmed, rejecting defendants arguments that (1) the prosecutor committed misconduct during opening statement, (2) the trial court erred by allowing a police officer to demonstrate how his .40-caliber service pistol worked, and (3) defendants sentence for felon in possession of ammunition should have been stayed pursuant to section 654. Because Cunningham, supra, 127 S.Ct. 856 does not affect our previous consideration of these arguments, it is unnecessary to modify our opinion in Johnson I in that regard, and we reiterate pages 2 through 10 (Background and Discussion sections A, B, & C) of that opinion in their entirety. (City of Long Beach v. Bozek (1983) 33 Cal.3d 727, 728.)

Defendant also argued that his sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely). At the time of our previous opinion, we were bound by the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that Blakely was inapplicable to Californias determinate sentencing scheme. After this court affirmed the judgment in this case, the United States Supreme Court granted certiorari in light of Cunningham, supra, 127 S.Ct. at pages 868-871, which disapproved Black I, and held that the middle term of Californias triad sentencing system is the maximum sentence that may be imposed by a judge unless an aggravating factor is proved to the jury beyond a reasonable doubt or is established by the defendants admissions or prior convictions. We received supplemental briefs from the parties regarding the impact of Cunningham, and now additionally have the benefit of our Supreme Courts recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. We now consider whether defendants sentence violated the Sixth and Fourteenth Amendments to the United States Constitution, as he claims.

II.
Discussion

Defendant argues that the aggravated sentence imposed by the trial court for the possession of a firearm by a felon charge, as well as the imposition of consecutive sentences (for the taking of a vehicle without the owners permission conviction and the possession of ammunition by a felon conviction), violated Blakelys prohibition on increasing the penalty for a crime beyond the prescribed statutory maximum based on a factor that was not submitted to a jury, and proved beyond a reasonable doubt.

A.     Issue Not Waived.

As a preliminary matter, we disagree with the Peoples argument that defendant waived this issue by failing to object on Blakely grounds at the sentencing hearing. The People focus on the fact that defendant was sentenced on September 30, 2005, more than a year after Blakely was decided. Defendant was sentenced more than three months after the California Supreme Court issued its June 20, 2005, Black I opinion, which therefore was good law at the time of defendants sentencing. Because any Blakely objection at defendants sentencing would have been futile, defendant did not waive this issue. (People v. Boyette (2002) 29 Cal.4th 381, 432.)

B.     Aggravated Sentence.

As defendant acknowledges, the trial court may impose a sentence above the statutory maximum based on the fact of a prior conviction, without the need for a jury trial. (Cunningham, supra, 127 S.Ct. at p. 860.) Our Supreme Court recently 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. (Black II, supra, 41 Cal.4th at p. 813, original italics.)

Our Supreme Court has held that no jury trial right exists on either the precise fact of a prior conviction or the broader but related fact of recidivism. (People v. McGee (2006) 38 Cal.4th 682, 706-707.) In McGee, the court held that a defendant has no right to a jury trial on whether his prior conviction from another jurisdiction qualifies as a serious felony conviction under Californias three strikes law. (Id. at p. 709.) In so holding, the California high court cautioned against dismissing the viability of the prior conviction exception without a clear directive from the United States Supreme Court, and approved of cases finding that the exception covers questions relating to recidivism, not merely the fact of a prior conviction. (Id. at pp. 700-709.) This state precedent is not undermined by Cunningham, which did not depart from the United States Supreme Courts recognition of the prior conviction exception. Indeed, Cunningham reiterated the prior conviction exception. (Cunningham, supra, 127 S.Ct at pp. 860, 868.)

This principle is consistent with the United States Supreme Courts opinion in Almendarez-Torres v. United States (1998) 523 U.S. 224, 226, 246-247, which held that recidivism could be used as a factor to increase a defendants penalty, without the need to charge recidivism as a separate element of a crime. [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Id. at p. 243.) Defendant argues that there appear to be enough votes to overrule Almendarez-Torres, but does not suggest that the case is not currently good law. (See also Black II, supra, 41 Cal.4th at p. 819, fn. 8 [declining to speculate whether high court will change its position on consideration of recidivism].)

Defendant claims that the trial court violated Cunningham and Blakely by imposing the upper term for the firearm possession charge by going beyond the mere fact that defendant had a prior conviction, to relying on  non-recidivist aggravating factors that were not tried to a jury, such as the fact that he was unsuccessful on parole. We disagree. The information before the trial court supports the imposition of the aggravated term due to two recidivist factors: defendants prior convictions are numerous and of increasing seriousness (rule 4.421(b)(2)), and his prior performance on parole was poor (rule 4.421(b)(5)).

First, we note that the trial court used defendants prior strike and prison prior to enhance defendants sentence. Although neither side raises this in their supplemental briefs, the trial court would not have been permitted to use those same precise factors to impose an upper term. ( 1170, subd. (b); Cunningham, supra, 127 S.Ct. at p. 863.) The enhancements imposed by the trial court were based upon the defendants prior conviction for robbery being either a violent felony (as defined in  667.5, subd. (c)), or a serious felony (as defined in  1192.7, subd. (c)), and upon the fact that the prior resulted in a prison commitment. These facts are not the same as those referenced in rule 4.421(b)(2), and the court was therefore free to rely upon the nature of defendants prior criminal history, that his convictions were numerous or of increasing seriousness, to impose the aggravated term without violating the prohibition on dual use of facts.

As Black II recently held, the fact that a defendants convictions are numerous or of increasing seriousness is sufficient to render a defendant eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at p. 818.) 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. [Citation.] (Id. at pp. 819-820.) As in Black II, the probation report here provided a full account of defendants convictions, which included a misdemeanor conviction in 1990, followed by two convictions in Washington state, and then a 1998 felony robbery conviction. (Cf. id. at p. 818.) This criminal history, which the trial court summarized before issuing its sentence, provided sufficient evidence that defendants prior convictions (the first for a misdemeanor and the fourth for a felony) were both numerous and of increasing seriousness, either element making defendant eligible for the upper term. (Ibid., citing People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous]; People v. Ramos (1980) 106 Cal.App.3d 591, 609-610 [minor juvenile convictions followed by convictions for petty theft and driving without a license were of increasing seriousness]; rule 4.421(b)(2).)

A second aggravating circumstancedefendants prior unsatisfactory history on parolealso made defendant eligible for the upper term. As a post-Cunningham case recently concluded, this circumstance is recidivism related and justifies the imposition of an upper term. (People v. Yim (2007) 152 Cal.App.4th 366, 371; see also Rule 4.421(b)(5).) This factor can be determined by reference to court records pertaining to [defendants] prior convictions, sentences and paroles. (Ibid.) The fact that defendant had multiple parole violations, as set forth in the probation report, shows that he was unsuccessful on parole. Defendant claims that the trial court apparently put great weight on defendants behavior after he was paroled.[4] Even assuming arguendo that is true, [t]he issue to be determined in each 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. (Black II, supra, 41 Cal.4th at p. 815, original italics.) We recognize that Black II does not specifically address whether a defendants unsatisfactory performance on parole is sufficient to justify an upper term where this factor is not tried to a jury by proof beyond a reasonable doubt. However, we conclude that this determination falls within the recidivism exception, because the determination of unsatisfactory performance on parole can be made by examining court records, a determination typically undertaken by the court. (Id. at pp. 819-820; People v. Yim, supra, 152 Cal.App.4th at pp. 370-371.) The trial court did not violate Cunningham by imposing the upper term.

Having concluded that defendant was not entitled to a jury trial on the recidivism factors that justified the imposition of the upper term, we likewise reject defendants related argument that the trial court erred by presumably finding the aggravating circumstances true by a mere preponderance of the evidence, in violation of Cunningham, supra, 127 S.Ct. 856. (Black II, supra, 41 Cal.4th at p. 820, fn. 9 [no requirement that recidivism factors need to be proved beyond a reasonable doubt].)

C.     Consecutive Sentences.

The trial court may impose consecutive sentences where a defendant has been convicted of two or more crimes. ( 669.) Defendant argues that the imposition of consecutive sentences for his convictions for unlawful taking of a vehicle and for being a felon in possession of ammunition violated Cunningham and Blakely. As the People correctly note, our Supreme Court held in Black I that the imposition of consecutive sentences does not violate Blakely. (Black I, supra, 35 Cal. 4th at pp. 1261-1264.) The court reaffirmed this holding in Black II, supra, 41 Cal.4th at page 823. The trial court here did not err in imposing consecutive sentences.

III.
Disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.

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

[2] An amended information was filed which deleted the serious felony allegation and deleted the violent prison prior allegation, replacing it with a simple prison prior allegation, pursuant to section 667.5, subdivision (b).

[3] All subsequent rule references are to the California Rules of Court.

[4] Defendant does not include a citation to the record for this assertion. At the sentencing hearing, the deputy district attorney disagreed with a probation officers sentencing report that concluded defendant was capable of probation compliance, because defendant had discharged from parole at statutory maximum having done all parole violations and all the revocations and all the returns into custody that burned up his parole. The trial court briefly agreed, and then turned to the probation officers characterization of the evidence at trial. In considering whether to strike a previous strike, the trial court later observed: [I]f you had been sentenced to the Department of Corrections as you were [for the 1998 robbery conviction], and then, after being paroled, complied with the conditions of parole and not misbehaved, that would have been a big factor in my decision here today. But it isnt because you didnt. In fact, its just the opposite, that you have been unsuccessful on your parole. [] This case involves a situation where you are an ex-felon. You shouldnt have a gun. [] . . . [] Obviously you havent [learned your lesson]. You continued to misbehave. You are a danger to the community, especially when you have a firearm, which is a major concern of mine.