P. v. Littlemoon

Filed 10/16/07 P. v. Littlemoon CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Joseph Eugene Littlemoon appeals from the sentence imposed by the trial court following a jury trial. He contends that imposition of the upper term violated his federal constitutional right to a jury trial. In light of the California Supreme Courts recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II ), we affirm the judgment.

Procedural Background

The Mendocino County District Attorney filed an information charging defendant with one count of attempted premeditated murder (Pen. Code, 187, 189, and 664; count one),[1] two counts of aggravated assault ( 245, subd. (a)(1); counts two and three), one count of burglary in the first degree ( 459 and 460, subd. (a); count four), and one count of participation in a criminal street gang ( 186.22, subd. (a); count five). The information alleged that defendant inflicted great bodily injury (12022.7, subd. (a)) and that the burglary was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)).

A jury found defendant guilty of the charged offenses and found true the special allegations. The trial court sentenced defendant to prison for a term of 7 years to life, plus 18 years 8 months.

Factual Background

Because defendant does not challenge his conviction on the merits, we present only a brief factual summary. (People v. Burns (2005) 128 Cal.App.4th 794, 799.)

The victims in this case, Steven Mendez and Anna Contreras, went to Contreras apartment on Laws Street in Ukiah in the early morning hours of March 18, 2006. When they arrived they saw that some windows had been broken; they called the police, who came and took a report. At about 2:00 a.m. that same night two men broke into the apartment, one carrying a knife and another carrying a baseball bat.

The men broke down the door to the bedroom and attacked Mendez. Mendez believed that the men belonged to the Norteo gang, because they wore red and called Mendez a scrap, which is a derogatory name for a member of the Sureo gang. Contreras testified that she was certain that the assailant with the baseball bat was defendant Littlemoon.

Contreras called the police. She was hit with the baseball bat but managed to run outside. Defendant was apprehended by the police after he ran out of the building with the baseball bat, which had blood on it and a red bandana tied to it. A gang expert opined that Littlemoon was a member of the Norteos and that the block where the assault occurred is local territory of the Norteos.

Mendez went to the hospital and was treated for a stab wound on his back and facial contusions, at least one of which was consistent with a blow from a baseball bat.

Two friends of defendant testified that defendant ran into Contreras building after hearing a call for help.

Discussion

In imposing the determinate sentence, the trial court selected count four (burglary) as the principal term and imposed the upper term of six years.[2] In explaining its decision to impose the upper term, the court stated, In aggravation, the crime did involve violence and harm and did disclose a high degree of cruelty and viciousness. Considering the defendant broke into the house armed with a baseball bat, it did demonstrate some sophistication. The defendants violent behavior, as accepted by the jury, does represent a danger to the community, especially when its associated with gang activity. The defendant was on probation when he committed this crime, although it was a misdemeanor probation. His performance on probation has not been satisfactory.

In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court concluded Californias determinate sentencing law violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 870.) Relying on Cunningham, defendant contends the trial courts imposition of the upper term in the present case violated his Sixth Amendment right to a jury trial. This contention fails under Black II, supra, 41 Cal.4th 799.^[3]

In Black II, the California Supreme Court reexamined the determinate sentencing law in light of Cunningham, supra, 127 S.Ct. 856. In particular, the court considered how Cunningham applies when the decision to impose the upper term is based on several aggravating factors and only some of the factors were required to be found by a jury under the Sixth Amendment. The court explained that under our determinate sentencing system, the existence of a single aggravating circumstance is sufficient to make a defendant eligible for the upper term. Black II concluded 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.) The court added that [t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense do not pertain to whether the defendant has a legal right to a lesser sentenceand that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Ibid.) Because the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term under Californias determinate sentencing law, 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 for Sixth Amendment purposes. (Ibid.)

Applying those conclusions to the facts before it, Black II noted that the United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. . . . recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Black II, supra, 41 Cal.4th at p. 818 [citations omitted].) The Court rejected a narrow interpretation of the recidivism exception, stating that it applies not only to the fact of the prior conviction, but also to other related issues that may be determined by examining the records of the prior convictions. (Id. at p. 819.) The Court held that defendants criminal history alone rendered him eligible for the upper term sentence, stating defendants criminal history and the jurys finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence . . .. (Id. at p. 820.)

In the present case, in imposing the upper term the trial court relied on, among other factors, the fact that defendant was on probation when he committed the offenses. This is an aggravating circumstance listed in rule 4.421(b)(4) of the California Rules of Court. The trial court finding, which could be made on the basis of court records alone, falls within the scope of the recidivism exception. (See Black II, supra, 41 Cal.4th at p. 819; People v. Yim (2007) 152 Cal.App.4th 366, 370-371 [defendants status as a parolee and poor performance on parole].) Because defendants probationary status at the time he committed the offenses rendered him eligible for the upper term, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence. (Black II, at p. 820.)

Defendant suffered no Sixth Amendment violation by the trial court exercise of its discretion in selecting the upper term.^[4]

Disposition

The judgment is affirmed.

GEMELLO, J.

We concur.

SIMONS, Acting P.J.

NEEDHAM, J.

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

[2] The court also selected the upper term for count two (aggravated assault) and stayed that term pursuant to section 654.

[3] We requested and obtained supplemental briefing from the parties regarding the effect of Black II on this appeal.

[4] In their supplementary briefing, the People rescind their argumentthat defendant forfeited his right to challenge the sentence because he did not raise an objection under Blakely at the time the sentence was imposed.  As in People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4, sentencing occurred following our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210, 167 L.Ed.2d 36], which held that Blakely did not apply to the California determinate sentencing scheme.  A Blakely objection at the time of sentencing would have been futile.  (Sandoval, at p. 837, fn. 4.)