P. v. Perez

Filed 8/6/07 P. v. Perez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F. Paul Dickerson, III, Temporary Judge. (Pursuant to Cal. Const., art VI, 21.) Affirmed.

Gerald Peters, 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, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Gregory Brandon Perez (defendant) is serving an eight-year sentence after suffering convictions in two separate cases for aggravated assault and use of force resulting in great bodily injury. In this appeal, he challenges the trial courts decision to sentence him to the upper term on the assault charge, based on the Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Defendant also argues that the trial court erred in using the same fact to impose the upper term as to impose a three-year sentence for the great bodily injury enhancement.

Statement of Facts and Procedure

On December 2, 2005, defendant was staying at the apartment of a friend, Michael Boyle, with whom he and his girlfriend had lived or often stayed overnight for about the previous year. After the first few months, they did not pay Boyle any rent. The victim, Christopher Lloyd, was a friend of Boyle who had previously lived in Boyles apartment as his roommate in 2001, 2002 and part of 2003. Boyle eventually asked Lloyd to move out. Lloyd, who did not have his own home, continued to visit Boyle and often stayed overnight when he was not staying with other friends, but did not have a key to the apartment. Defendant and Lloyd were often at Boyles apartment at the same time, and this caused friction and resentment between the two.

On the morning of December 2, 2005, Boyle and Lloyd both went to work while defendant stayed at the apartment. Lloyd left work early and had two beers on the way back to Boyles apartment, arriving around 1:30 to 2:00 p.m. Lloyd knocked and rang the doorbell several times, but defendant refused to let him in. After knocking for several more minutes, Lloyd walked around to the dining room window, through which he could see defendant, and knocked on the window and asked why defendant was not letting him in. An argument ensued, during which Lloyd pushed the window open, defendant grabbed Lloyds hands, and punched him in the face, causing him to fall to the ground. Defendant, who was wearing work boots, then jumped out of the window and proceeded to kick Lloyd numerous times while Lloyd lay curled up in a ball. Lloyd was left bleeding from his nose, mouth and eyes. His eyes were swollen shut, several teeth were cracked, and a crown was broken.

The People charged defendant with aggravated assault (Pen. Code, 245, subd. (a)(1))^[1]and use of force causing serious bodily injury ( 243, subd. (d)). The People also alleged that defendant personally inflicted great bodily injury when he committed the aggravated assault. The jury convicted defendant of the two charges and found the great bodily injury allegation to be true.

The trial court also found that defendant had violated his probation on a previous case, in which defendant had pled guilty to aggravated assault ( 245, subd. (a)(1)) and graffiti ( 594, subd. (b)(2)). This appears to be the third time defendant violated the probation extended to him on this previous case.

The trial court sentenced defendant to seven years in prison on the current offense as follows: the upper term of four years for the aggravated assault; the upper term of four years for the use of force, stayed pursuant to section 654; plus three years for the great bodily injury enhancement.

On the probation violation, the trial court imposed a one-year sentence (one-third the midterm of three years for aggravated assault) to run consecutive to the sentence for the current offense. This appeal followed.

Discussion

A. Imposing the Upper Term Did Not Violate Defendants Right to a Jury Trial

Citing Blakely,^[2]Apprendi,^[3]and Cunningham, defendant argues that imposing the upper term on the aggravated assault charge violated his federal constitutional rights to a jury trial and due process because the findings in aggravation were made by the trial court and not by a jury.

At sentencing, the trial court cited the following reasons for imposing the upper term: defendants convictions are becoming increasingly serious and violent; he was on felony probation at the time he committed this offense; his prior performance on probation was unsatisfactory; the current crime involved great violence, bodily harm and cruelty; and defendants conduct shows he is an extreme danger to society.

Cunningham held that Californias determinate sentencing law violates Apprendis bright-line rule that any fact that increases the penalty for a crime beyond the statutory maximum must be proved beyond a reasonable doubt to a jury. (Cunningham, supra, 127 S.Ct. at p. 868.) However, Cunningham reaffirms that a prior conviction can increase the sentencing penalty. (Ibid. [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 . . . .].) Prior convictions are traditional sentencing factors used by a judge and need not be submitted to a jury to support a sentence. (United States v. Booker (2005) 543 U.S. 220, 244.) Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. (Ibid.; Apprendi, supra, 530 U.S. at p. 490.)

This exception for prior convictions to the requirement that a jury must determine the truth of sentencing factors beyond a reasonable doubt is known as the Almendarez-Torres^[4]exception. The rationale for this exception is (1) recidivism traditionally has been used by sentencing courts to increase the length of an offenders sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial protections. (People v. McGee (2006) 38 Cal.4th 682, 698, citing Apprendi, supra, 530 U.S. at pp. 487-488; Jones v. United States (1999) 526 U.S. 227; and Almendarez-Torres, supra, 523 U.S. 224.)

[T]he finding of even one factor in aggravation is sufficient to justify the upper term. [Citation.] (People v. Steele (2000) 83 Cal.App.4th 212, 226.) In addition, our California Supreme Court has recently concluded that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 WL 2050875, p. 6].) Here, the trial court found that defendants convictions are becoming increasingly serious and violent in nature, that he was on felony probation at the time he committed this offense, and his prior performance on probation was unsatisfactory. The fact that a defendant suffered a prior conviction is sufficient to support the imposition of the maximum penalty in a sentencing range. (Jones v. United States, supra, 526 U.S. at pp. 248-249.) As previously discussed, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. (Ibid.; Apprendi, supra, 530 U.S. at p. 490.) [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Apprendi, supra, 530 U.S. at p. 488.) In addition, our California Supreme Court has concluded that the Almendarez-Torres exception covers not only the bare fact of the prior conviction, but the nature of the conviction and questions related to recidivism in general. (People v. McGee, supra, 38 Cal.4th at p. 704.)

Consequently, defendants attack on the upper term lacks merit because imposition of the maximum term is traditionally allowed where a defendant has sustained a prior conviction.

B. Any Error in Making Dual Use of Great Bodily Injury is Harmless

Defendant argues that the trial court erred in using as an aggravating sentencing factor the fact that defendant inflicted great bodily injury on Lloyd, because the court also imposed a three-year sentence enhancement based on the jury finding that defendant inflicted great bodily injury.

We agree with the People that, even if this was error, it is harmless. As stated above, [T]he finding of even one factor in aggravation is sufficient to justify the upper term. [Citation.] (People v. Steele, supra,83 Cal.App.4th at p. 226.) The trial court properly relied on the three recidivism factors to impose the upper term without the need for a jury finding. Thus, defendant suffered no prejudice from any dual use of the fact that defendant inflicted bodily injury on his victim.

Disposition

The judgment of conviction and the sentence imposed are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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

^[2]Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

^[3]Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).

^[4]Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).