P. v. Owens

Filed 8/7/07 P. v. Owens CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

This is defendants second appeal in this matter. In his first appeal, case No. E036788, we found that the trial court erred in imposing a full, consecutive term on count 2 pursuant to Penal Code section 667.6, subdivision (c)^[1]because it was unaware of its sentencing discretion, and we remanded the matter for resentencing for the trial court to exercise that sentencing discretion. We also directed the trial court to prepare and forward to the appropriate agencies an amended abstract of judgment that reflected the noted modifications to defendants sentence and that also reflected that defendant was convicted of assault with intent to commit oral copulation on count 2. In all other respects, we affirmed the judgment.^[2] (See People v. Owens (June 20, 2006, E036788) [nonpub. opn.] (Owens I).)

Following remand, the trial court exercised its sentencing discretion as ordered by this court, then imposed the same 25-year sentence it had previously imposed,^[3]including the upper term sentence on count 2.

In this second appeal, defendant claims the he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868] (Cunningham), Blakely, supra, 542 U.S. 296, and Apprendiv. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 2. Under the California Supreme Courts recent decision in People v. Black (2007) ___ Cal.4th ___ [2007 WL 2050875] (Black II), we reject this contention and affirm the judgment.

I

DISCUSSION^[4]

On remand, defense counsel argued that defendant should be sentenced to one third of the mid term on count 2. The prosecutor replied,  . . . I believe that 12 years [the upper term of six years, doubled pursuant to the three strikes law] full and consecutive is still the appropriate sentence based on defendants history and conduct.

The trial court opined that a consecutive sentence was appropriate and noted its reasons for imposing a consecutive term on count 2. The court found the following factors in aggravation: The victim was particularly vulnerable; defendant engaged in conduct that indicated he was a serious danger to society; and defendant demonstrated a high degree of cruelty and viciousness. The court otherwise incorporated the reasons stated at the original sentencing hearing.

In the prior sentencing hearing, the trial court selected the upper term of eight years on count 3 (sexual battery) and a consecutive upper term of 12 years on count 2 (assault with intent to commit oral copulation) based numerous factors in aggravation and no factors in mitigation. The court found the following factors in aggravation: The crimes involved great violence, threats of bodily harm, and a high degree of cruelty; the victim was particularly vulnerable; the manner in which the crimes were carried out indicated planning and professionalism; defendant engaged in violent conduct that posed a serious danger to society; defendants prior adult convictions were numerous and of increasing seriousness; defendant served a prior prison term; defendant was on parole at the time of the instant offense; and defendants prior performance on parole and probation was unsatisfactory.

Relying on Cunningham, Blakely, and Apprendi, defendant contends the upper term sentence violates his Sixth Amendment rights because the sentence was based on aggravating factors not reflected in the jury verdict or admitted by defendant.

In Cunningham, supra,127 S .Ct. 856, 868, the United States Supreme Court overruled Black I, supra, 35 Cal.4th 1238, and held that the middle term in Californias determinate sentencing law was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, at p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998)523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi: [T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] (Cunningham, at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488 & 490.)^[5] The court explained Californias determinate sentencing law violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.] (Cunningham, at p. 868.)

While this appeal was pending, the California Supreme Court decided Black II, supra, 2007 WL 2050875. There, the court held that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black II, at p. 7, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black II, at pp. 10‑12.)

Here, at least two of the aggravating factors on which the trial court relied were within the Almendarez-Torres exception: (1) that defendants prior convictions were numerous and increasingly serious (Black II, supra, 2007 WL 2050875 at p. 11), and (2) that defendant had served a prior prison term (People v. Thomas (2001) 91 Cal.App.4th 212, 223; see also People v. McGee (2006) 38 Cal.4th 682, 700-701). It follows that the trial court did not err by imposing the upper term based on these and other aggravating factors.

Defendant also argues that any use of his prior section 220 conviction cannot support imposition of the upper term since it would constitute an impermissible dual use of facts based on the fact that it was used to enhance his sentence under the three strikes law. We reject this argument, as defendant had numerous prior convictions in addition to the prior section 220 conviction.

II

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

KING

J.

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^[1] All future statutory references are to the Penal Code unless otherwise specified.

^[2] Pursuant to our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I), we rejected defendants claim under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) that the court erred in imposing upper and consecutive terms on counts 2 and 3.

^[3] In his first appeal, defendant was sentenced to a total term of 25 years as follows: the upper term of four years, doubled to eight years pursuant to the three strikes law on count 3; a consecutive upper term of six years doubled to 12 years on count 2; a concurrent midterm of two years doubled to four years on count 4; the midterm of four years doubled to eight years on count 1, which was stayed pursuant to section 654; and a consecutive term of five years for the section 667, subdivision (a) enhancement. (Owens I, supra, at p. 2.)

^[4] The details of defendants criminal conduct are not relevant to the limited issue defendant raises in this appeal. Those details are set out in Owens I, and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.

^[5] In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)