P. v. Moore

Filed 7/24/07 P. v. Moore CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Reginald Moore of two counts of robbery (Pen. Code,  211 -- counts one and two) and one count of evading a police officer (Veh. Code,  2800.2, subd. (a) -- count three). The jury found true the allegation that defendant personally used a firearm in the commission of counts one and two. ( 12022.53, subd. (b).)^[1] The court found true the allegation that defendant had served a prior prison term. ( 667.5, subd. (b).)

The court sentenced defendant to 21 years in prison: on count one, the upper term of five years for the robbery conviction, plus a consecutive 10-year sentence for the firearm use enhancement; on count two, a consecutive term of one year (one-third the middle term) for the robbery, plus three years and four months (one-third the 10-year term) for the firearm use enhancement; and on count three, a consecutive term of eight months (one-third the middle term) for evading a police officer; and an additional one year for the prior prison term enhancement.

The sole issue on appeal is whether the court violated defendants Sixth and Fourteenth Amendment rights by imposing the upper term based on factors that had not been found true beyond a reasonable doubt by the jury. Because the court properly based imposition of the upper term on defendants record of prior convictions, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and his codefendant Dameon Boone robbed Bennie Hamilton and Michael Jones at gunpoint in two separate incidents during the early morning hours of May 29, 2004. A short time later, the police located the suspects vehicle in the same area. A high-speed chase ended when the suspects crashed into a parked vehicle. Police followed defendant and Boone when they fled on foot and apprehended the pair a short time later.

The probation report listed defendants prior convictions and juvenile adjudications. In addition to the November 28, 2001, conviction for possession of cocaine base for sale (Health & Saf. Code,  11351.5), which provided the basis for the prior prison term allegation ( 667.5, subd. (b)), defendant had two prior convictions as an adult: on April 3, 2000, for possession of rock cocaine (Health & Saf. Code,  11350, subd. (a)); and on July 26, 2000, for possession of cocaine base for sale (Health & Saf. Code,  11351.5). The juvenile adjudications included: On October 20, 1994, two counts of robbery ( 211) when defendant was 14 years old; and on August 15, 1995, petty theft ( 488) when he was 15 years old.

The probation report also listed seven circumstances in aggravation under California Rules of Court, rule 4.421, including: (1) defendants prior convictions as an adult and under sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness (rule 4.421(b)(2)); (2) defendant had served a prior prison term (rule 4.421(b)(3); and (3) defendant was on probation or parole when the crime was committed (rule 4.421(b)(4)).

At sentencing, defense counsel responded to the probation departments recommendation that defendant receive the upper term: Probation does note that [defendant] does have a lengthy record; however, we also have our objections with regards to Blakely.^[[2]] And in order, Your Honor, . . . for the Court to comport with the obligations of Blakely, . . . it would probably be in the best interest that [defendant] receive the midterm to avoid any subsequent issues that could arise in the future regarding this particular point.

The court declined the invitation to impose the middle term, stating, I am imposing the five-year upper term sentence [for the robbery in count one] because, in addition to having a very significant criminal record, you were on parole also at the time of this offense.

And, for the record, notwithstanding the fact this Courts sentencing scheme is being challenged in front of the United States Supreme Court, I want to make it very clear that the Court is imposing the upper term in this case because of your prior convictions, and I do take judicial notice of those prior convictions.

And, in addition, to make it very clear, I am not dually using the prior conviction that I found true in your case. I am using the other prior convictions that you have suffered along the way since you were the age of 14 to impose the upper term.

DISCUSSION

Defendant offers four reasons in support of his argument that imposition of the upper term constituted reversible error. First, he argues that the sentence is invalid under Blakely.^[3] Second, after acknowledging that the court relied on the prior conviction exception set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350] (Almendarez-Torres), defendant contends that Almendarez-Torres was wrongly decided. Third, he maintains that even if Almendarez-Torres remains good law, prior juvenile adjudications are not included within the prior conviction exception. Fourth, defendant asserts that the court erred in relying on the fact defendant was on parole at the time he committed the current offenses. There is no merit in defendants argument.

The United States Supreme Court has consistently held that the Federal Constitutions guarantee of a jury trial invalidates any sentencing scheme that allows a judge to impose a sentence greater than the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, ___ U.S. at p. ___ [166 L.Ed.2d at p. 864]; Blakely, supra, 542 U.S. 296, 490 [159 L.Ed.2d 403, 412-413]; and Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) Under California law, a single aggravating factor is sufficient to support imposition of the upper term (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband)), if it complies with Cunningham, Blakely and Apprendi.

The Apprendi court derived the prior conviction exception from Almendarez-Torres. (Apprendi, supra, 530 U.S. at pp. 488-490.) Although the United States Supreme Court has questioned the holding of Almendarez-Torres (see Apprendi, supra, 530 U.S. at p. 489; and Shepard v. United States (2005) 544 U.S. 13, 27 [161 L.Ed.2d 205, 219] (conc. opn. of Thomas, J.)), the court has not elected to overrule the case. (See Rangel-Reyes v. United States (2006) ___U.S.___ [165 L.Ed.2d 910] [denying petition for writ of certiorari to reconsider Almendarez-Torres].) We are bound by the prior conviction exception (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and conclude the court did not err in applying it in the case before us. Accordingly, the court properly relied on two adult priors -- the April 2000 conviction for possession of rock cocaine and the July 2000 conviction for possession of cocaine base for sale -- when it imposed the upper term.

Defendant also challenges the courts reliance on defendants two prior juvenile adjudications and the fact he was on parole as justification for sentencing defendant to the upper term. Because a single aggravating factor is sufficient to justify imposition of the upper term (Osband, supra, 13 Cal.4th 622 at p. 728), we need not address those issues. Moreover, because of the courts comments, we are convinced beyond a reasonable doubt that even absent these two factors it would have imposed the upper term.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

I concur:

ROBIE , J.

I concur in the result.

I agree with Justice Cantil-Sakauyes opinion that, in imposing the upper term, the trial court properly relied on defendants prior convictions, which did not have to be tried to a jury.

I also think that defendants prior juvenile adjudications did not have to be tried to a jury. Defendant relies primarily on the opinion of the Ninth Circuit Court of Appeals in United States v. Tighe (9th Cir. 2001) 266 F.3d. 1187, at pages 1194 through 1195. However, in People v. Palmer (2006) 142 Cal.App.4th 724 (an opinion I wrote), we joined a virtual parade of California Court of Appeal cases that have rejected Tighes analysis. (Palmer, supra, at p. 733.) I think Palmer is correctly decided. It follows that defendants prior juvenile adjudications count as prior convictions that do not have to be tried to a jury.

This leaves the factor that defendant was on parole at the time of the offense. Assuming for the sake of argument that this factor had to be tried to a jury, the failure to do so was harmless beyond a reasonable doubt. (See Washington v. Recuenco (2006) __ U.S. __ [165 L.Ed.2d 466].) The fact that defendant was on parole was listed as a factor in aggravation in the probation report. The record shows that defendants counsel received a copy of the probation report and reviewed the report with defendant before the date of sentencing. At the sentencing hearing, the prosecutor stated, [Defendant] was on parole at the time this happened. Because the probation report listed this factor as an aggravating factor, and because the prosecutor stated the factor in open court, defendant had every incentive to challenge the accuracy of the probation report and the prosecutors statement. Yet he did not do so, doubtless because he was in fact on parole when he committed the offense. In these circumstances, I conclude beyond a reasonable doubt that a jury would have found this factor true had the issue been submitted to a jury.

SIMS , Acting P.J.

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^[1] Hereafter, undesignated statutory references are to the Penal Code.

SEE CONCURRING OPINION

^[2]Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).

^[3] The United States Supreme Court decided Cunningham v. California (2007) ___ U.S. ___ [166 L.Ed.2d 856] (Cunningham) after defendant filed his opening brief and before the People filed their opening brief. Cunningham invalidated Californias determinate sentencing law insofar as it gave the court, not the jury, the authority to find facts that expose a defendant to the upper term by a preponderance of the evidence and not by proof beyond a reasonable doubt. (Id. at p. ___ [166 L.Ed.2d at p. 864].) Defendant filed no reply brief.