P. v. McMahon

Filed 10/30/07 P. v. McMahon CA1/5

Opinion following remand by Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Brian Thomas McMahon appeals his conviction by jury verdict of one count of possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) and one count of possession of a hypodermic needle and syringe. (Bus. & Prof. Code,  4140.) In a bifurcated proceeding, the court found true the allegation that he had served three prior prison terms. (Pen. Code,  667.5, subd. (b).) In our original unpublished opinion, filed May 31, 2007, we affirmed appellants convictions, but reversed the upper term sentence based on our interpretation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. On August 8, 2007, the California Supreme Court granted a petition for review. On September 12, 2007, it transferred the case to us for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. In light of these cases, we affirm appellants upper term sentence.

DISCUSSION

Appellant was sentenced to a total prison term of six years: the upper term of three years on count one, possession of methamphetamine, a concurrent term of 120 days on count two, possession of a hypodermic syringe, and three one-year terms for three prior prison terms, pursuant to Penal Code section 667.5, subdivision (b).

As factors in aggravation to impose the upper term the court stated: By way of aggravation he has a prior criminal record which has been outlined and of course his prior performance on parole as stated before was abysmal in consideration of these at least 17 parole violations. The outline to which the court referred was its enumeration of appellants prior convictions recited in conjunction with its conclusion that appellant was ineligible for parole. These prior convictions consisted of a 1997 felony conviction for possession of methamphetamine, a 1987 felony conviction for prisoner possession of a weapon and possession of a dangerous weapon, a 1982 felony conviction for assault with a deadly weapon, a 2004 misdemeanor conviction for being under the influence of methamphetamine, and a 1994 misdemeanor conviction of possession of a syringe. The present offense took place in June 2005.

The court found no factors in mitigation, nor did the presentence report identify any.

Appellant served prison terms for the 1997, 1987, and 1982 felony convictions. These prison terms were the basis of the courts three one-year enhancements pursuant to Penal Code section 667.5, subdivision (b).

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the court held that Californias determinate sentencing law violated a defendants federal constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 871].)

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys version. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.] (Sandoval, supra, 41 Cal.4th at pp. 836-837.) The latter exception was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), and has been construed broadly to apply to all factors based on a defendants recidivism. (See Black, supra, 41 Cal.4th at p. 819; People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.) If the trial court has found at least one aggravating factor that falls within either of these exceptions, the federal Constitution does not preclude it from imposing an upper term sentence based on that and other aggravating factors that do not fall within these exceptions. (Black, supra, 41 Cal.4th at pp. 810-816.)

Here, the aggravating factors on which the court relied were within the Almendarez-Torres exception: appellants prior criminal record and his poor performance on parole, both of which are factors based on his recidivism. The record supports the trial courts findings. As noted, his criminal record included misdemeanor convictions in addition to the three prior felony convictions for which appellant served a prison term. Prior convictions, for Almendarez-Torres/Apprendi/Cunningham purposes, are not limited to felonies; nothing in these opinions states that a misdemeanor is not also a recidivist fact exempted from the requirement that a defendant is entitled to have the jury find all facts necessary for imposition of a punishment above the statutory maximum. Appellants minimum of 17 parole violations justified the trial courts finding of an abysmal parole performance.

Because the two factors used to support the upper term fell within the Almendarez-Torres exception and were supported by substantial evidence, the court did not err in sentencing appellant to the upper term.^[1]

DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Gemello, J.

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^[1]In all other respects, our decision dated May 31, 2007, remains in effect.