P. v. Salinas

Filed 9/19/07 P. v. Salinas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe, Judge.

Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury found Librado Salinas, Jr., guilty of transportation of methamphetamine (Health & Saf. Code,  11379, subd. (a); count 1), possession of methamphetamine in jail (Pen. Code,  4573.6; count 2), and possession of methamphetamine for sale (Health & Saf. Code,  11378; count 3). !(1 CT 73-77; 2 CT 439-441, 445; 3 RT 534-536)! At a bifurcated trial, the court found two strike prior allegations true. (Pen. Code, 211, 212.5, subd. (a), 245, subd. (a)(1), 667, subds. (c)-(j), 1170.12, subds. (a)-(e).) !(1 CT 73-77; 2 CT 445-446; 3 RT 533, 541-542)!

At Salinass probation and sentencing hearing, the court struck one strike prior (Pen. Code, 1385), found no circumstance in mitigation true (Cal. Rules of Court, rule 4.423^[1]), and found three circumstances in aggravation true that his prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous, that he served a prior prison term, and that his prior performance on probation and parole was unsatisfactory in that he violated terms and reoffended. (Cal. Rules of Court, rules 4.421(b)(2), 4.421(b)(3), 4.421(b)(5)). !(2 CT 465; 3 RT 549, 553)!

Just before sentencing Salinas, the court referred to probation documents showing that, apart from his juvenile record of, inter alia, (1) possession of toluene (Pen. Code,  381) on September 22, 1981, (2-3) theft and under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a); Pen. Code, 484) on October 31, 1983, and (4) under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)) on June 6, 1984, he had an adult record of (1-2) grand theft and tampering with a vehicle (Pen. Code, 487; Veh. Code, 10852) on November 27, 1985, (3) false imprisonment (Pen. Code, 236) on October 5, 1987, (4) disorderly conduct (Pen. Code, 647) on May 18, 1988, (5-7) unlawful driving or taking of a vehicle, resisting arrest, and flight from a peace officer (Pen. Code, 148; Veh. Code, 2800.1, 10851) on July 1, 1988, (8-9) disorderly conduct and falsely identifying himself to a peace officer (Pen. Code, 148.9, 647) on September 24, 1988, (10-14) assault with a deadly weapon, first degree robbery, inflicting physical pain or mental suffering on a child, cruelty to animals, and resisting arrest (Pen. Code,   148, 211, 212, subd. (a), 245, subd. (a)(1), 597, subd. (a)) on June 11, 1990, (15) being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)) on April 26, 1996, (16-18) driving under the influence, falsely identifying himself to a peace officer, and refusing to take a chemical test (Pen. Code, 148.9; Veh. Code, 23152, subd. (a); former Veh. Code, 23159, subd. (a)(1)) on October 26, 1996, (19-20) driving on a suspended license and following too closely (Veh. Code, 14601.1, 21703) on February 1, 1999, and (21) disobeying a domestic relations protective order (Pen. Code, 273.6, subd. (a)) on June 7, 2000. !(Prob.Rpt. 2-5)!

At that juncture, the court, as recommended by the probation documents, sentenced Salinas concurrently on all three counts to the doubled aggravated term (Pen. Code, 667, subd. (e)(1), 1170.12, subd. (c)(1)) eight years for transportation of methamphetamine (Health & Saf. Code,  11379, subd. (a); count 1), eight years for possession of methamphetamine in jail (Pen. Code,  4573.6; count 2), and six years for possession of methamphetamine for sale (Health & Saf. Code,  11378; Pen. Code, 18; count 3) and stayed sentence on counts two and three (Pen. Code, 654) for an aggregate determinate sentence of eight years. !(2 CT 465-466, 472; 3 RT 545-554)!

On appeal, Salinas argued that the court violated his federal constitutional rights to due process and jury trial by choosing the aggravated term on all three counts on the basis of circumstances in aggravation not determined by a jury. !(AOB 8-10; ARB 2-3; but see RB 4-6)! We affirmed the judgment. (People v. Salinas (August 22, 2006, F048660) [nonpub. opn.].) On February 20, 2007, the United States Supreme Court granted his petition for a writ of certiorari, vacated the judgment, and remanded his case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856; 127 S.Ct. 856] (Cunningham).) !(Order in file)! We have recalled the remittitur, read supplemental briefing by both parties, and considered the record anew in light of Cunningham.

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. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 873; 127 S.Ct. at p. 868], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) (italics added).) The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, [549] U.S. at p. __, [166 L.Ed.2d at p. 873] 127 S.Ct. at p. 868; Blakely [v. Washington (2004)] 542 U.S. [296,] 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 [] (Almendarez-Torres). (Black II, supra, 41 Cal.4th at p. 818.) [R]ecidivism is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Almendarez-Torres, supra, at p. 243.) (Black II, supra, 41 Cal.4th at p. 818.) The imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id. at p. 816; italics added.) That is so here.^[2]

DISPOSITION

The judgment is affirmed.

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

^[1]Cited are the versions of the rules of court in effect at the time (until January 1, 2007).

^[2]In light of our holding, we need not address the courts true findings of other circumstances in aggravation.