P. v. McMullen

Filed 10/29/07 P. v. McMullen CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Donald Lee McMullen files this appeal from an order imposing consecutive sentences. Appellant argues that the trial courts imposition of consecutive terms violated the United States Supreme Courts decision in Blakely v. Washington (2004) 542 U.S. 296, and appellants constitutional rights to due process and a jury trial. For the reasons stated below, we affirm the imposition of consecutive sentences.

BACKGROUND

On April 10, 2000, appellant was charged with one count of possession of a controlled substance in violation of Health and Safety Code section 11377, and one count of resisting a police officer in violation of Penal Code section 148.[1] The complaint further alleged three prior convictions within the meaning of section 667.5, a 1990 conviction for violating Health and Safety Code section 11377, a 1993 conviction for violating Health and Safety Code section 11350, and a 1995 conviction for violating Health and Safety Code section 11378. On April 20, 2000, pursuant to a negotiated plea, appellant pled guilty to violating Health and Safety Code section 148 (the first count), and admitted the 1993 and 1995 prior convictions. The remaining count and allegation were dropped. On May 25, the trial court imposed and stayed a five-year sentence. Appellant was remanded to the California Rehabilitation Center for treatment as a narcotic addict.

After release from the Center on October 11, 2001, appellant failed to contact his parole agent, and failed to test weekly, and the Center determined that he was not a suitable candidate for the addict program. Following this determination, the trial court issued a warrant for appellants arrest. On July 20, 2006, appellant was remanded into custody pending resentencing.

On August 10, 2006, the Lake County District Attorney filed a two-count information, alleging appellant had committed one count of elder abuse in violation of section 368, subdivision (e), and one count of vehicle theft in violation of Vehicle Code section 10851, subdivision (a). Appellant had allegedly stolen $17,000 and a car from an elderly man who had hired appellant to be his in-home supportive services worker. The information also alleged that appellant had suffered one prior conviction under Vehicle Code section 10851, subdivision (a), within the meaning of Penal Code section 666.5, as well as three other prior convictions within the meaning of section 667.5, including a 1988 conviction under Vehicle Code section 10851, subdivision (a), a 1993 conviction for violating Health and Safety Code sections 11350, subdivision (a) and 11377, Penal Code sections 484e, 496, and finally a 1995 conviction under section 273a.

On October 23, 2006, pursuant to a negotiated plea, appellant pled guilty to count two, vehicle theft in violation of Vehicle Code section 10851, subdivision (a), and admitted the 1988 prior conviction. The remaining count and prior allegations were dismissed.

On January 23, 2007, the trial court sentenced appellant in both cases. The court imposed the midterm of two years for the Vehicle Code section 10851, subdivision (a) conviction in 2000 (No. 31817.1). The trial court then imposed a consecutive, one-third the midterm sentence of two years, eight months on the later Health and Safety Code section 11377, subdivision (a) conviction in the later case (No. 26551.01). The reporters transcript finally indicates that the court imposed two one-year terms based on the section 667.5, subdivision (b) allegations made in connection with the 2000 conviction. The total term imposed was five years, eight months.[2]

Appellant filed a timely notice of appeal on June 14, 2007.

DISCUSSION

Appellant argues that the trial courts imposition of consecutive terms violated Blakely v. Washington, supra, 542 U.S. 296, which held unconstitutional the imposition of certain sentences based on factors not admitted by the defendant or found by a jury. (Id. at p. 313.) In this case, the trial court did not impose the statutory maximum sentence for any of appellants crimes and the trial court identified four factors relevant to sentencing. It found that the crimes and their objectives were predominately independent of one another, that neither crime involved a separate act of violence, and that [t]he crimes were committed at different times and separate places, and that the crimes do not constitute a single period of abhorrent behavior. Appellant argues that under Blakely, for the court to impose consecutive sentences based upon such findings, those findings must have been made by a jury.

This argument was rejected by the California Supreme Court in People v. Black (2007) 41 Cal.4th 799. There, the court held that [t]he reasons given for imposing a consecutive sentence need only refer to the primary factor or factors that support the decision to impose such a sentence. Californias statutory scheme creates no presumption towards concurrent sentences; and, in deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. [Citation.] Factual findings are not required. (Id. at p. 822.) Thus, the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], does not call into question the conclusion we previously reached regarding consecutive sentences. Therefore the trial court in this case was not required to base its imposition of consecutive sentences on findings made by a jury.

DISPOSITION

The judgment of the trial court is affirmed. The minute order and abstract of judgment[3] shall be amended by the clerk of the trial court to correctly reflect that appellant admitted only two prior convictions within the ambit of section 667.5, and that the sentence imposed by the trial court on the Vehicle Code section 10851, subdivision (a) conviction was the statutorily designated midterm of three years.

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Lambden, J.

We concur:

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Kline, P.J.

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Richman, J.

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[1] All further unspecified code sections refer to the Penal Code.

[2] Although the trial court stated that it was imposing the midterm of two years for the Vehicle Code section 10851, subdivision (a) violation, the count also alleged and appellant admitted, a prior conviction applicable under section 666.5. The correct midterm on this count is three years. As appellants attorney points out, the misstatement appears to occasion no harm [and] no foul because the court correctly calculated the total aggregate sentence to be five years, eight months. Accordingly, we will order an amendment of the abstract to reflect the correct sentence described bellow.

[3] The minute order and abstract describe a two-year term for the Vehicle Code section 10851, subdivision (a) conviction (No. 31817.1), together with an eight-month term on the Health and Safety Code section 11377, subdivision (a) conviction in the later case (No. 26551.0), plus three one-year terms for three prior section 667.5 convictions. Appellant admitted only two priors under section 667.5.