P. v. Johnson

Filed 10/22/07 P. v. Johnson CA1/1

Opionion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

David M. Johnson appealed his conviction of kidnapping (Pen. Code,  207, subd. (a)[1]), willful infliction of corporal injury on a spouse with a prior conviction ( 273.5, subds. (a) & (e)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), and making criminal threats ( 422).) With respect to the kidnapping and corporal injury on a spouse counts, the jury also found true allegations that defendant had inflicted great bodily injury ( 12022.7, subd. (a)). The court sentenced defendant on the kidnapping count to the upper term of eight years, and three years for the enhancement. It also imposed the upper term on the remaining counts, but stayed the terms pursuant to section 654.

Defendant contended his conviction for kidnapping must be reversed because the instructions on withdrawal of consent allowed the jury to convict him without finding the requisite intent. He also contended that in violation of Cunningham v. California (2007) ___ U.S. ____ [127 S.Ct. 856] (Cunningham), the court imposed the aggravated term on each count based upon aggravating factors that must, absent defendants waiver, be submitted to a jury.

On April 13, 2007, we issued an opinion rejecting the first of these contentions, but finding Cunningham error. As modified on May 14, 2007, we therefore vacated sentence and ordered the matter remanded to the trial court to allow the court to reinstate the sentence or to hold a resentencing hearing consistent with Cunningham, supra, 127 S.Ct. 856, and the views expressed in that opinion. On June 27, 2007, the California Supreme Court granted review (S152823). On September 12, 2007, the Supreme Court dismissed review and transferred the matter to us to reconsider in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. We have done so, and affirm the judgment.

Discussion

Our earlier opinion (People v. Johnson (Apr. 13, 2007, A113097 [nonpub. opn.]) remains on file with this court. We hereby incorporate it by reference.

We noted that at the sentencing hearing held on February 9, 2006, the trial court found the following significant factors in aggravation, the particular cruelty of the attack based on Mr. Johnsons knowledge of his wifes physical condition, that it was particularly painful because of her degenerative neck condition, and also the prior numerous convictions, the prior prison term, and the unsatisfactory prior grants of probation and parole. It further found the successful completion of two grants of probation, and possibly the intoxication might be considered in mitigation. The court stated its conclusion that the aggravating factors outweighed the mitigating factors, and stressed that defendants attack was extremely damaging not just physically, but mentally and emotionally, that the death threat was real and immediate and that defendants offenses also caused serious emotional damage to the victims daughter, who had testified at trial.

Defendant argued, [i]n [Cunningham, supra, 127 S.Ct. 856],the United States Supreme Court held that the imposition of an upper term sentence under Californias determinate sentencing law (DSL), based on a judges finding by a preponderance of the evidence that circumstances in aggravation outweighed circumstances in mitigation, violates a defendants Sixth and Fourteenth Amendment right to a jury trial. The high court also held that the middle term sentence . . . is the maximum sentence a judge may impose under the DSL without the benefit of facts reflected in the jurys verdictthat is, facts found true by a jury beyond a reasonable doubtor admitted by the defendant. [] The Cunningham court thus extended to the DSL the rule it originally announced in Apprendi v. New Jersey (2000) 530 U.S. 466, 476 (Apprendi). The Apprendi rule states that a sentencing scheme that allows a judge to impose 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, violates the federal constitutional guarantee of a right to a jury trial.

We held that three of the four aggravating factors found by the sentencing court, i.e., the prior prison term, the numerous prior convictions, and unsatisfactory performance on probation, all were properly found by the court because they fall within the Almendarez-Torres exception that allows the court to impose a sentence in excess of the statutory maximum based on a judges finding that a defendant had a prior conviction. (See Almendarez-Torres v. United States (1998) 523 U.S. 224.) We noted Cunningham did not overrule Almendarez-Torres, noting further thatas interpreted by the California Supreme Court and courts in other jurisdictions, the Almendarez-Torres exception extends beyond the mere fact of a prior conviction, and includes facts related to the defendants recidivism (see People v. McGee (2006) 38 Cal.4th 682, 700-709 and cases cited there), which includes a finding that defendant had a prior prison term, that his performance on probation was unsatisfactory, and that his prior convictions were numerous. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222, cited with approval in People v. McGee, supra, at pp. 700-703.)

We also found, however, that the fourth factor considered by the sentencing court, i.e., that the crime involved a high degree of cruelty, falls within the category of sentencing facts that must be determined by a jury unless the defendant waives his right to a jury trial. In concluding the sentencing court erred by considering this factor, we rejected the Peoples contention that defendants constitutional right to a jury trial is not violated under Cunningham, supra, 127 S.Ct. 856, where, as here, at least one aggravating factor is properly found by the court under the Almendarez-Torres exception. As we could not determine whether the improper factor was determinative for the sentencing court in selection the upper term, we deemed it necessary to vacate the sentence and remand the matter to the trial court.

On July 19, 2007, the California Supreme Court decided People v. Black II, supra, 41 Cal.4th 799, where the court at page 813, responding to Cunningham, effectively adopted the argument we had rejected. The court reasoned, [S]o 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. . . . [] . . . Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely [v. Washington (2004) 542 U.S. 296], the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. 

Here, as noted, three of the circumstances listed by the court pertained to defendants recidivism and, therefore, are circumstances that were not required to be submitted to a jury under Apprendi, supra, 530 U.S. 466. It follows that defendant is not legally entitled to the middle term sentence; the upper term sentence is the statutory maximum. As a result, any additional factfinding engaged in by the trial court in selecting the appropriate sentence did not violate defendants right to a jury trial.

Defendant, in a supplemental brief, disagrees with the reasoning in Black II, supra, 41 Cal.4th 799, urging us to take a different view. Despite that argument, defendant recognizes we are bound by the holding of the states Supreme Court (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), acknowledging that the arguments he makes will do no more than to preserve the sentencing argument for further review.

Disposition

The judgment is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

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MARGULIES, J.

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People v. Johnson (A113097)

[1] Unless otherwise indicated, all subsequent statutory references are to the Penal Code.