P. v. Kollock

Filed 10/26/06 P. v. Kollock CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed.

Rodney Kollock appeals from a judgment convicting him of sale of cocaine base, possession of cocaine base for sale, and resisting an officer. His sole contention of error is that the trial court's selection of upper term sentences violated the jury trial right defined in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We reject his argument and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2004, Kollock was arrested after an undercover police officer observed him furnishing cocaine base to several individuals. On December 12, 2004, Kollock was again observed engaging in an apparent narcotics sale transaction. When the police attempted to detain him, he tried to flee and struggled with the officer. After the jury convicted Kollock of the charged offenses and Kollock admitted several charged enhancements, the trial court sentenced him to 15 years, eight months in prison. The trial court selected the upper terms for the cocaine base sale and possession for sale counts.^[1]

At the sentencing hearing, several witnesses presented statements indicating that Kollock was a diligent, responsible worker; that he had started his own handyman business; and that he provided ongoing assistance to an elderly woman and her special needs grandson. The trial court nevertheless selected upper terms for the sale and possession of cocaine counts, finding that this punishment was warranted because of Kollock's lengthy criminal record, his prior prison terms, the violent nature of some of his past conduct, his repeated failure to successfully complete probation, and his recurring parole revocations.

The probation report shows Kollock has incurred numerous misdemeanor and felony convictions. In 1994, he was convicted of sale of cocaine base; he was given probation, but after several probation revocations he was sent to prison. In 1996, he was convicted of assault with a deadly weapon and again sentenced to prison. He committed the 1996 offense while in jail, where he kicked and punched another inmate as the inmate lay on the floor in a fetal position. In 1998, he was sentenced to prison for another drug sale offense and thereafter again violated parole. In 2001, he was charged with assault with a deadly weapon and possession of cocaine base, and pleaded guilty to the drug possession offense. The assault charge arose from an incident where he stabbed the victim in the leg after having a disagreement. He violated parole and was returned to prison in 2002 and 2003. In 2004, he committed the current offenses while he was on probation.

The trial court noted Kollock's drug and alcohol abuse problem and his apparent hardworking nature, but concluded that Kollock "consistently, systematically violate[d] the law and pillage[d] people" and that society had a right to be protected from him.

DISCUSSION

Kollock argues that under the principles set forth in Blakely, supra, 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220, his jury trial rights were violated because a jury did not decide the aggravating factors supporting the upper term sentencing choice beyond a reasonable doubt.

The Attorney General argues Kollock has forfeited his claim of Blakely error because he did not raise it before the trial court. We need not decide this issue because the claim fails on its merits. As Kollock recognizes, in People v. Black (2005) 35 Cal.4th 1238, 1244, 1261-1264, the California Supreme Court held the jury trial violation identified in Blakely and Booker does not occur under California's sentencing scheme authorizing a trial court's discretionary selection of upper terms. Kollock raises the Blakely argument for purposes of preserving federal review. He also asks us not to follow Black given the United States Supreme Court's granting of certiorari in Cunningham v. California (Apr. 18, 2005, A103501 [nonpub. opn.], cert. granted Feb. 21, 2006, No. 05-6551, ___ U.S. ___ [126 S.Ct. 1329]), which involves the Blakely upper term issue resolved in Black. We may not do so. Unless and until the United States Supreme Court provides contrary direction, we are obligated to follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Moreover, the fact that the trial court primarily relied on Kollock's prior convictions to impose the upper terms also shows there was no Blakely error, or if there was error it was harmless beyond a reasonable doubt. Blakely retains the rule that "the fact of a prior conviction" may be used to aggravate a sentence without a jury determination of this factor. (Blakely, supra, 542 U.S. at p. 301.) The California Supreme Court recently evaluated this prior conviction exception to the Blakely rule and concluded that as long as the exception is not expressly abolished by the United States Supreme Court, it is still viable. (People v. McGee (2006) 38 Cal.4th 682, 699, and fn. 7, 708-709.) Because sentencing based on recidivism has long been recognized as properly within the purview of a sentencing court rather than a jury, the prior conviction exception has been broadly interpreted to allow a trial court to make sentencing determinations related to a defendant's recidivism. (See id. at pp. 698, 701, 706-707.) Further, the United States Supreme Court has recently determined that Blakely error is not structural error but is properly reviewed under a harmless beyond a reasonable doubt standard. (Washington v. Recuenco (2006) ___ U.S. ___, 126 S.Ct. 2546, 2551-2553; see Neder v. U.S. (1999) 527 U.S. 1, 15-16.) Here, the trial court's statements at the sentencing hearing clearly indicate its decision was premised on Kollock's criminal history. The court was authorized to rely on this factor to impose upper terms, and we have no doubt it would have done so even if recidivism was the only factor properly subject to its consideration.

We reject Kollock's Blakely challenge and affirm the judgment.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P.J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

^[1] The trial court's selection of upper rather than middle terms for counts one and two added one extra year to Kollock's actual sentence. He received the upper term of five years (rather than the middle term of four years) for the cocaine sale conviction, and the upper term on the cocaine possession conviction was stayed. His remaining sentence consisted of eight months for resisting an officer, and 10 additional years for various enhancements.