P. v. Richardson

Filed 4/30/07 P. v. Richardson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Arthur Harrison, Judge. Affirmed.

Warren P. Robinson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Gary W. Schons, Senior Assistant Attorneys General, and Lilia E. Garcia, Supervising Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Joseph Lee Richardson guilty of two counts of second degree robbery (Pen. Code, 211, counts 2 & 5)^[1]and two counts of attempted second degree robbery ( 664/211, counts 6 & 7). As to each count, the jury also found true the allegation that defendant was vicariously armed with a firearm. ( 12022, subd. (a)(1).) The jury additionally found true the allegations that the crimes committed by defendant were carried out in a manner that indicated planning and that one or more of the victims of the crimes was particularly vulnerable. The trial court sentenced defendant to state prison for a total term of nine years four months, which included the upper term of five years on count 2.

Defendants sole contention on appeal is that the imposition of the upper term sentence violated his Sixth Amendment right to trial by jury under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856].We disagree and affirm.

FACTUAL BACKGROUND

Around 8:00 p.m., on February 14, 2004, three men ran into a Dennys restaurant. The men were all dressed in dark clothing and had their faces covered with bandanas. One of the men was armed with a large handgun. He jumped over the counter, pointed the gun at the restaurant hostess, and demanded that she open the cash register and give him the money. The men yelled at the restaurant patrons to [g]et down on the floor. The men proceeded to rob individual patrons and employees.

As the robbery took place, Ronald Rodas and his family arrived at the restaurant. Rodas observed two women running out of the restaurant. They warned him not to go inside. Rodas looked in the window and saw a man pointing a gun at the cashier. Rodas and his family got back into their car. As they were getting into the car, Rodas saw three men run out of the restaurant and get into a car that did not have license plates. Rodas followed the car onto the freeway and called the police to notify them. The police pursued the robbers car. During the pursuit, an officer observed the robbers throwing items out of the car. Later, the police recovered one of the items that was thrown from the car. It was a backpack that contained a loaded gun. The police eventually caught and arrested the robbers, including defendant.

ANALYSIS

The Trial Court Properly Imposed the Upper Term

Defendant contends that his Sixth Amendment right to a jury trial, as defined in Blakely, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), was violated when the trial court imposed the upper term sentence. We disagree.

A. Background
At the start of the trial, the prosecutor informed the court that it would submit two sentencing factors as special findings to the jury, in order to forestall any Blakely problems. The two factors were that the victims were particularly vulnerable and that the crime was committed in a manner that evidenced planning. The jury subsequently returned true findings on the special allegations.

At the sentencing hearing, the court remarked that the offense was an extremely violent take-over robbery, where one of several perpetrators entered a business establishment, accosted an employee at the counter with an assault weapon, and deprived patrons of their property at gunpoint. The court opined that the robbery had a high degree of risk to many innocent people in the restaurant. The court further stated that it considered the aggravating factors listed in the probation report, and that it felt that the factors in aggravation do outweigh factors in mitigation, if there are any. The aggravating factors listed in the probation report included: 1) the crime involved violence, the threat of great bodily harm, and other acts disclosing cruelty; 2) that defendant was armed; 3) the manner in which the crime was carried out indicated planning, sophistication, or professionalism; 4) the crime involved an attempted or actual taking of great monetary value; and 5) that defendant engaged in violent conduct, which indicated a serious danger to society. The only mitigating factor listed was that defendant had an insignificant criminal record. The court noted that the jury made special findings that the victims were particularly vulnerable and that the incident involved sophistication and planning. The court indicated its intention to impose the aggravated term and concluded that the factors found in aggravation by the jury, in addition to those enumerated by the court, justified an aggravated term.

B. The Court Properly Imposed the Upper Term

In Blakely, the U.S. Supreme Court affirmed that [o]ther 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, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) The California Supreme Court later determined that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendants Sixth Amendment right to a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black).) The Black decision was controlling authority at the time of the sentencing hearing in the instant case. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) However, as pointed out by defendant in his reply brief, the United States Supreme Court recently ruled that facts used to impose an upper term sentence under Californias determinate sentencing law are subject to the above stated rule set out in Blakely/Apprendi. This holding effectively overruled Black on this point. (Cunningham v. California, supra, 127 S.Ct. 856.) Nonetheless, we conclude that the present sentence may be affirmed, based on an aggravating factor found true by the jury.

A single factor in aggravation suffices to support imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730.) At sentencing, the court noted the jurys findings that the victims were particularly vulnerable and that the incident was committed in a manner indicating planning. The court then relied upon those factors, as well as the factor that it stated in courtthat the crime committed had a high degree of risk to many peoplein sentencing defendant to the upper term. Defendant concedes that the court properly relied on the factor that the crime involved planning. He does, however, argue that the court should have considered this factor in light of the mitigating factor that his criminal record contained only one misdemeanor. The record expressly shows that the court weighed and considered defendants record and did not find it to be insignificant. The court noted other evidence showing that defendant was on probation and violated it at least once. The court apparently disagreed with the probation officers assessment that defendants record was a mitigating factor, as indicated by the courts conclusion that the factors in aggravation do outweigh factors in mitigation, if there are any. (Emphasis added.)

Defendant also contends that: 1) the court improperly relied on a factor, which was not found true by a jurythat the incident involved a risk to multiple victims; and 2) the jurys finding that the victims were particularly vulnerable was not supported by substantial evidence, since the victims were not vulnerable in any special way. Any error in the courts reliance on its own determination that the crime involved a risk to multiple victims was harmless beyond a reasonable doubt, since the record clearly supported the courts determination. (Chapman v. California (1967) 386 U.S. 18.) Moreover, in view of the courts proper reliance on the jury-found factor that the incident involved planning, any error in relying on other factors was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

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