P. v. Penniman

Filed 8/23/07 P. v. Penniman CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

George Genestra, Judge. Affirmed.

Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Darrell Dean Penniman (Penniman) appeals the judgment entered following a jury trial which resulted in his conviction of second degree burglary (Pen. Code, 459)^[1]and petty theft with a prior ( 666),^[2]and the trial courts finding he had served prison terms for four prior felony convictions ( 667.5, subd. (b)). The trial court sentenced Penniman to seven years in prison.

Penniman contends the trial court violated his constitutional right to due process of law when, without the jury having found the factors in aggravation true beyond a reasonable doubt, the court imposed the upper term of three years in prison for his conviction of second degree burglary. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that at approximately 2:30 p.m. on April 14, 2006, Michael Kuo (Kuo) was working at his business located in a building on Santa Anita Avenue in an industrial area of South El Monte. Kuo was at his desk and he looked out a nearby window to see Penniman sleeping next to a wall by the side of Kuos warehouse. It began to rain and Kuo saw Penniman get up, walk across a driveway toward another building, then walk around to the side of the building where there were windows. Kuo lost sight of Penniman for a moment, then heard a big noise, as if something had punch[ed] the glass . . . window.

Kuo got up from his desk and went outside to see what [had] happened. As he approached the building across the driveway, Kuo saw Penniman use an approximately

eight inch by eight inch metal object to break one of the windows, then enter the building

through the broken window. At that point, Kuo called police from his cell phone.

Kuo remained outside the building, standing on the driveway. From this vantage point, he saw Penniman come out the back door of the building with a bicycle. As Penniman was walking away with the bicycle, Kuo told him, You cannot take the bike away. After hesitating for a moment, Penniman set the bicycle down onto the ground, then walked away from the building and down the driveway. Police officers arrived as Penniman reached Santa Anita Avenue.

Los Angeles County Deputy Sheriff Brant Frederickson (Frederickson) responded to Kuos call. After Kuo identified Penniman as the man who had broken into the building and taken the bicycle, Frederickson detained Penniman. From under Pennimans jacket, Frederickson recovered a folded satchel with a number of wrenches inside. Frederickson placed Penniman under arrest, transported him to the police station and booked him. Frederickson then took the packet of wrenches back to the building on Santa Anita Avenue where he contacted Peter Yung (Yung), the owner of the business operating in the building Penniman had broken into. Yung indicated both the wrench set and the bicycle Penniman had left on the ground belonged to him. Yung had not given anyone, including Penniman, permission to enter the building or to take his bicycle or wrenches.

2. Procedural History.

At proceedings held on August 14, 2006, the prosecutor presented a section 969b packet, which included four fingerprint cards. Penniman stipulated the fingerprints on the cards contained in the packet were his.

After reviewing the packet, the trial court found true the allegations Penniman had previously been convicted of four felonies within the meaning of section 667.5, subdivision (b). The prior convictions included driving under the influence of an alcoholic beverage or drug in violation of Vehicle Code section 23152, receiving stolen property in violation of section 496, subdivision (a) and two convictions for second degree burglary in violation of section 459.

At the same proceedings, the trial court noted Penniman had 20 adult convictions and was on parole at the time he committed the present offenses. The court continued, . . . I see nothing in [Pennimans] record going back to the 70s since he was a minor, that theres any significant break in criminal activity. . . . Mr. Penniman is a recidivist criminal, albeit not the most serious criminal, but nonetheless creates problems for society and for himself. . . . [] The court would have to with a clasped nose and blinded eyes not . . . find aggravating circumstances in this case. I had thought about it, but I just cant ignore 20 convictions without any let up whatsoever.

After reviewing Pennimans probation report, the trial court found the following factors in aggravation: (1) the manner in which the crime was carried out indicate[d] planning, sophistication and professionalism[;] (2) Pennimans prior convictions as an adult and of sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness[;] (3) Penniman has served prior prison terms[;] (4) Penniman was on probation or parole when the crime was committed[;] and (5) Pennimans prior performance on probation or parole was unsatisfactory[.] The trial court found no circumstances in mitigation.

The court imposed the upper term of three years in prison for Pennimans conviction of second degree burglary in violation of section 459. For Pennimans conviction of petty theft with a prior in violation of section 666, the court imposed, then stayed pursuant to section 654, the middle term of two years in prison. For each of his section 667.5, subdivision (b) prior prison terms, the trial court imposed sentences of one year in prison, the terms to run consecutively to each other and the term imposed for the second degree burglary. In total, the trial court sentenced Penniman to seven years in state prison.

Penniman was awarded presentence custody credit for 123 days actually served and 61 days of good time/work time, for a total of 184 days. The trial court ordered Penniman to pay a $200 restitution fine ( 1202.4, subd. (b), a stayed $200 parole revocation restitution fine
( 1202.45), a $20 court security fee ( 1465.8, subd. (a)(1)), and a $10 burglary fine
( 1202.5).

Penniman filed a timely notice of appeal on August 16, 2006.

CONTENTIONS

Penniman contends the trial court violated his constitutional right to due process of law when, without the jury having found the factors in aggravation true beyond a reasonable doubt, the court imposed the upper term of three years in prison for his conviction of second degree burglary.

DISCUSSION

1. Cunningham v. California.

In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the court, relying on its decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), determined the 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. (Cunningham v. California, supra, 127 S. Ct. at p. 860.) For purposes of the Cunningham rule, the relevant statutory maximum . . . is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Ibid., original italics.) In other words, the statutory maximum is the designated middle term which the trial court may impose as punishment for a particular crime.

2. Penniman did not waive his right to challenge imposition of the upper term on the ground it violated Cunningham.

Initially, the People contend Penniman waived any right to challenge the upper term sentence by failing to object to its imposition in the trial court. The contention is without merit.

In People v. Sandoval (July 19, 2007, S148917) ___Cal.4th___ [2007 D.A.R. 11051, 11054, fn. 4], citing People v. Welch (1993) 5 Cal.4th 228, 237-238, the court indicated an objection in the trial court is not required if the objection would have been futile. At the time Penniman was sentenced, the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) governed. In Black I the court determined the judicial fact finding which occurred when a judge exercised discretion to impose an upper term sentence did not implicate a defendants right to a jury trial. (Id. at p. 1254.) Since the trial court was bound by the Black I decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456), trial counsel cannot be faulted for failing to have objected to the imposition of the upper term on the ground the jury should have found the aggravating factors beyond a reasonable doubt. (People v. Sandoval, supra, ___Cal.4th___ [2007 D.A.R. 11051, 11054, fn. 4].) Such an objection would have been futile.

3. The trial courts reliance on the aggravating factor that the manner in which the crime was carried out indicated planning, sophistication and professionalism violated the mandate of Cunningham.

Here, the trial court relied on five factors in aggravation to impose the upper term for Pennimans conviction of second degree burglary. The first factor, that the manner in which the crime had been carried out indicated planning, sophistication and professionalism, did not involve a prior conviction, was not admitted by Penniman and was not found by a jury beyond a reasonable doubt. Reliance on this factor thus violated the rule set forth in Cunningham. However, as we conclude below, several valid factors remain. It has been determined that a single factor in aggravation will suffice to support imposition of the upper term. (People v. Black (July 19, 2007, S126182) ___Cal.4th___ [2007 D.A.R. 11041, 11046-11047]; People v. Osband (1996) 13 Cal.4th 622, 730.)

4. The trial court properly relied on factors pertaining to Pennimans recidivism to impose the upper term for his conviction of burglary.

The remaining four factors in aggravation cited by the trial court pertain to Pennimans prior convictions. Although the Cunningham decision generally precludes the trial court from finding circumstances in aggravation, it also reaffirmed prior determinations that a trial court may impose an upper term for a conviction based on a defendants prior convictions without submitting the question of the existence of those convictions to a jury. (Cunningham v. California, supra, 127 S. Ct. at p. 868; see Almendarez-Torres v. United States (1998) 523 U.S. 224; Blakely v. Washington, supra, 542 U.S. at p. 301; Apprendi v. New Jersey, supra, 530 U.S. at pp. 488, 490.)

In People v. Black, supra, ___Cal.4th___ [2007 D.A.R. 11041, 11047-11048] (Black), the court determined the defendants criminal history rendered him eligible for the upper term sentence. The court recognized that [t]he United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] The court continued, The trial court [in this matter] stated it considered not only the circumstances of the crime but also the other aggravating circumstances set out in the district attorneys sentencing brief. In that brief, the prosecutor listed the aggravating circumstance described in California Rules of Court, rule 4.421(b)(2) as one of the aggravating circumstances applicable in this case. The probation report did likewise. California Rules of Court, rule 4.421(b)(2) specifies that it is an aggravating circumstance that defendants prior convictions . . . are numerous or of increasing seriousness. (Ibid.)

In determining the defendant was not entitled to a jury trial on the aggravating circumstance involving his prior criminal history, the Black court indicated that the prior conviction exception should not be read too narrowly. (People v. Black, supra, ___Cal.4th___ [2007 D.A.R. at p. 11048.) Relying on People v. McGee (2006) 38 Cal.4th 682, 703-706, the Black court recognized that numerous decisions from other jurisdictions have interpreted the Almendarez-Torres [prior conviction] exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.] [] The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.] (People v. Black, supra, ___Cal.4th___ [2007 D.A.R. at pp. 11048-11049].) The Black court concluded the defendants criminal history established an aggravating circumstance that independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible

for the upper term. Therefore, he was not legally entitled to the middle term, and his

Sixth Amendment right to a jury trial was not violated by imposition of the upper term sentence . . . . (Id., at p. 11049.)

In the present case, the trial court imposed the upper term after indicating it was relying on several factors relating to Pennimans recidivism, including that Penniman had served prior prison terms. Although this would otherwise be a valid factor, [a] fact underlying an enhancement cannot do double duty; it cannot be used to impose an upper term sentence and, on top of that, an enhanced term. (Cunningham v. California, supra, 127 S.Ct. at pp. 863-864.) Here, the trial court imposed sentence enhancements for prison terms served for Pennimans four prior felony convictions. However, even if we do not consider as a factor in aggravation that Penniman served prior prison terms and, accordingly, do not rely on the corresponding four convictions as factors in aggravation, Penniman still has a considerable criminal record.

The remaining three factors relied on by the trial court are neither invalid nor duplicative. A review of Pennimans probation report indicates Penniman was on parole when the present crimes were committed. That Pennimans prior convictions as an adult and of sustained petitions in the juvenile [court] are numerous and of increasing seriousness is also supported by a reading of the probation report. The report indicates Pennimans criminal career began in 1969 when, as a juvenile, he was found to have committed grand theft. In 1970, while still a juvenile, Penniman committed forcible rape. As an adult, Penniman has suffered at least 16 criminal convictions, not including the four felonies for which sentencing enhancements were imposed, for various crimes, including, among others, theft, assault with a deadly weapon, possession of a controlled substance, being under the influence of a controlled substance and driving under the influence of alcohol or drugs. That his crimes are of increasing seriousness is supported by evidence that, although some of his earlier convictions were for relatively minor crimes such as being under the influence of a controlled substance, his last three convictions consisted of two for burglary and one for receiving stolen property. Finally, the fact, according to the probation report, that Penniman committed the majority of his prior offenses while on probation or parole, shows that his prior performance on probation or parole was unsatisfactory.

On this record, we conclude these three factors involving Pennimans criminal history established aggravating circumstances which independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial [as well as his right to due process of law] was not violated by imposition of the upper term sentence . . . . (People v. Black, supra, ___Cal.4th___ [2007 D.A.R. at p. 11049].

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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

^[2] The jury found Penniman guilty of petty theft in violation of section 484, subdivision (a). Out of the presence of the jury, Penniman admitted that on July 14, 2003, he had been convicted in case number BA243685 of the felony of second degree burglary.