P. v. Romero

Filed 8/6/07 P. v. Romero CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and J. Robert Jibson, Deputy Attorney General, for Plaintiff and Respondent.

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In October 2004, appellant, Israel Romero, pled no contest to felony possession of PCP (Health & Saf. Code, 11377, subd. (a)), and admitted allegations that he had (1) suffered a strike^[1]and (2) served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)). In January 2005, the court struck the strike and placed appellant on probation. In May 2006, appellant suffered a conviction of misdemeanor driving a motor vehicle while under the influence of alcohol or drugs (Veh. Code, 23152, subd. (a)), and based on that conviction, and on appellants admission of an allegation that he violated his probation by not remaining in contact with the probation department, the court denied reinstatement on probation and imposed a prison term of three years. At sentencing, the court also stated, Ill lift the stay on the 1202.44 fine of $200, given the violation and the state prison sentence.

Thus, the court purported to lift the stay on a $200 fine imposed pursuant to Penal Code section 1202.44 (section 1202.44).^[2] However, as appellant contends and the People concede, at no time did the court impose such a fine. Indeed, as the parties also agree, appellant was not subject to a section 1202.44 fine because he committed the instant offense in November 2003, prior to the enactment of section 1202.44. (People v. Callejas (2000) 85 Cal.App.4th 667 [fine imposed pursuant to statute enacted after commission of offense upon which fine is based violates constitutional ban on ex post facto laws].)

The abstract of judgment indicates appellant was ordered to pay a fine of $200 pursuant to section 1202.44. As demonstrated above, the abstract is in error. Accordingly, we will order the court to issue an amended abstract of judgment which corrects the error.

We turn now to an issue not raised by the parties, viz., whether the imposition of an upper term based on circumstances in aggravation not found by a jury beyond a reasonable doubt violates a defendants constitutional right to trial by jury. We deem it appropriate to address this issue because (1) it has been the subject of recent decisions by both the United States and California Supreme Courts; (2) this court, by its order of February 16, 2007, deemed this issue raised without further briefing; and (3) the court in the instant case imposed an upper term sentence based on factors in aggravation found not by the jury, but by the court.

The court here imposed the upper term based on its findings of the following factors in aggravation: (1) appellant had suffered a prior conviction of assault with a firearm (Pen. Code, 245, subd. (a)(2)) in 1996; (2) he had suffered a prior conviction of violating Vehicle Code section 10851 in 2006; and (3) he violated the terms of his probation.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348] (Apprendi), the United States Supreme Court held: 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, and proved beyond a reasonable doubt. (Italics added.) The high court reaffirmed this holding in Blakely v. Washington (2004) 542 U.S. 295, 301 [124 S.Ct. 2531, 2536] (Blakely) and Cunningham v. California, ___ U.S. ___ [127 S.Ct. 856, 868] (Cunningham).

We recognize that one of the circumstances in aggravation found by the courtappellants violation of probationis not strictly, the fact of a prior conviction, (Apprendi, supra, 530 U.S. at p. 490, italics added), at least to the extent the violation consisted of appellant not reporting to his probation officer. However, we need not decide whether the Apprendi/Blakely/Cunningham prior conviction exception can be construed broadly enough to include this factor. The two remaining aggravating factorsappellants two prior felony convictionsfall squarely within the exception. And very recently, the California Supreme Court held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating factor . . . is justified based upon [inter alia] the defendants record of prior convictions. (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 D.A.R. 11041, 11046-11047].) Therefore, imposition of the upper term here did not violate appellants constitutional right to trial by jury.

DISPOSITION

The superior court is directed to issue an amended abstract of judgment which omits all reference to a fine under section 1202.44. In all other respects, the judgment is affirmed.

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^*Before Wiseman, Acting P.J., Gomes, J., and Dawson, J.

^[1] We use the term strike, in its noun form, as a synonym for prior felony conviction within the meaning of the three strikes law (Pen. Code, 667,
subds. (b)-(i) & 1170.12); i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^[2] Section 1202.44 provides: In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. Probation revocation restitution fines shall be deposited in the Restitution Fund in the State Treasury.