P. v. Sanchez

Filed 10/5/07 P. v. Sanchez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kings County. Louis F. Bissig, 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, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant was charged with one count of possession of heroin in state prison, a violation of Penal Code section 4573.6. The information alleged defendant had one prior serious or violent felony strike conviction: a conviction of second degree murder. (Pen. Code 667, subds. (b)-(i); 1170.12, subds. (a)-(d).) Defendant was serving a prison sentence for that conviction at the time of the current offense. Defendant entered a plea of not guilty and denied the strike allegation.

During trial, defendant admitted the prior conviction. The jury found defendant guilty as charged. On December 4, 2006, the court sentenced defendant to state prison for the upper term of four years, doubled to eight years for the prior strike conviction, to be served consecutive to the term already being served. Defendant appeals, contending the upper term sentence was improperly imposed and must be reduced to the midterm sentence.

DISCUSSION

A. Forfeiture of claim of error

The Attorney General contends defendant forfeited his claim of error in imposing the upper term by failing to object at the time of sentencing. Defendant was sentenced while the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) was still the law in California. Black I held that a defendant did not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Black I was controlling law at the time of defendant's sentencing, and he was not required to make a futile objection at that time. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) The decision in Black I was binding on the lower courts until it was overruled by Cunningham v. California (2007) 549 U.S. ___ [127 S. Ct. 856] (Cunningham). (People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) That occurred after defendants sentencing. Consequently, defendant did not forfeit his claim by failing to object.

B. Imposition of upper term

In Cunningham, the United States Supreme Court abrogated the California Supreme Courts ruling in Black I that the upper term was the statutory maximum sentence under Californias determinate sentencing law. It held that the middle term was the statutory maximum and, except for a prior conviction, any fact that increased the penalty for a crime beyond that statutory maximum had to be submitted to the jury and proved beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) Subsequently, in People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court concluded that, under Californias determinate sentencing law, a single aggravating circumstance is legally sufficient to make a defendant eligible for the upper term. (Id. at p. 815.) As long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established consistently with the Sixth Amendment, the upper term may be imposed; the court may rely on any number of additional aggravating factors in exercising its discretion to select the appropriate term, regardless of whether the facts have been found by a jury. (Black II, supra, 41 Cal.4th at p. 813.) An aggravating circumstance is properly established when it has been found to exist by the jury, has been admitted by defendant, or is justified based upon defendants record of prior convictions. (Id. at p. 816.) The prior conviction exception includes "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." (Id. at p. 819.)

The trial court imposed the upper term based in part on its findings that defendant had a history of violent prior criminality and history of probation violation. Aggravating circumstances making a defendant eligible for the upper term include: [t]he defendant has engaged in violent conduct that indicates a serious danger to society and [t]he defendants prior performance on probation or parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(1) & (b)(5).)

The exception to the jury trial right for prior convictions, is not limited simply to the bare fact of a defendant's prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a violent felony) that renders the defendant subject to an enhanced sentence. (People v. McGee (2006) 38 Cal.4th 682, 704.) Prior unsatisfactory performance on probation or parole falls within this exception; it is a recidivism related factor that can be determined by reference to court records pertaining to appellant's prior convictions, sentences, probations and paroles. (People v. Yim (2007) 152 Cal.App.4th 366, 371.)

Defendant had a prior conviction of second degree murder with an enhancement for personal use of a firearm. (Pen. Code 187, subd. (a); 12022.5, subd. (a).) The probation report reflected that defendant had an earlier misdemeanor conviction of carrying a loaded firearm (Pen. Code 12031, subd. (a)), and defendant was arrested on the second degree murder charge approximately two months after he was placed on two years probation for the misdemeanor offense. These facts, which may be determined by examining the records of the prior convictions, establish that defendant performed poorly on probation. No trial court or jury could rationally find otherwise. (People v. Yim, supra, 152 Cal.App.4th at 371.)

Because at least one aggravating circumstance was properly established, defendant was eligible for the upper term sentence. Imposition of the upper term did not violate defendants Sixth or Fourteenth Amendment rights.

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Levy, J. and Hill, J.