P. v. Smith

Filed 9/24/07 P. v. Smith CA2/7

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Francis J. Hourigan, Judge. Affirmed.

Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Lance E. Winters, Michael R. Johnsen, and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Charles Smith was convicted of second degree commercial burglary (Pen. Code,[1] 459) and sentenced to a total of seven years in prison. He appeals on the ground that the imposition of the upper term sentence violated his Sixth Amendment right to a jury trial as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prior to June 19, 2003, Smith and some companions had visited Osmar Jewelry multiple times just before the store closed for the day. The owner of the store observed that they were looking at the security cameras, bill-paying window, and the layout of the store. On one of the earlier visits, Smith had asked about Rolex chains; he was told that the store did not carry them and was referred to another merchant. He nonetheless visited the store twice more, and asked again for a Rolex chain when he and the others returned to the store on June 19. Based on his previous interactions with Smith and his companions, the owner of the store was alarmed and feared that they were preparing to rob him. The owner called the police and began ushering people out of the store, saying that it was closing time. As he did so, he saw that the men had bulges in their clothing that suggested they were carrying items beneath their clothes. He also heard one of the men ask another, Do we do it now? The other man responded, No, not now.

Smith and his companions were stopped by the police as they were leaving the store. When searched, Smith was found to possess a set of restraints known as flex cuffs or zip ties, gloves, and a pillowcase. A second man was carrying a handgun, gloves, and a number of flex cuffs. A third man, who had been seen holding a gun, also had gloves and a pillowcase.

Smith was charged with attempted second degree robbery ( 664, 211) and second degree commercial burglary. He was convicted of second degree commercial burglary. The jury deadlocked on the attempted robbery charge and the court declared a mistrial on that count. The prosecutor later elected not to retry Smith for the attempted robbery, and the trial court dismissed the charge pursuant to section 1385.

At sentencing, Smith admitted a prior robbery conviction for purposes of the Three Strikes Law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667.5, subdivision (b). The court imposed the high term of three years for the burglary, doubled under the Three Strikes Law. Defense counsel objected to the imposition of the high term under Blakely, supra, 542 U.S. 296. The court also imposed a one-year sentence enhancement for Smiths prior prison term under section 667.5, subdivision (b).

At sentencing, the court explained the imposition of the high term as follows:

This court is strongly influenced by the fact that as the prosecutor has stated, there was strong, strong evidence that the defendant entered the store with the intent to commit another robbery.

The defense was able to convince four of the twelve jurors that Mr. Smith did not take enough steps to make it an attempted robbery. And others, such as [the prosecutor], might argue[,] what more do you have to do? If you do anything more, youve got a completed robbery. But four of the jurors felt the evidence was insufficient.

That being said, the court still believes that the crime of burglary where the underlying crime is a robbery[,] in conjunction with the prior being for robbery[,] the fact that there were guns, plastic ties, pillowcases, and gloves, suggest that Mr. McIntyre was less than credible when he told us that Mr. Smith went into the jewelry store because he needed a ride to pick out an engagement ring for his girlfriend.

That strains credibility. And Mr. Smith, unfortunately, has a proclivity to commit robberies.

And that is a serious crime.

Hes on parole.

So for that reason, the court is going to impose the high term of three years for the second-degree commercial burglary conviction.

Smith appealed his sentence on Sixth Amendmentgrounds. In an unpublished opinion issued after the California Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238 (Black I) but before the United States Supreme Court disapproved Black I in Cunningham, supra,127 S.Ct. 856, this court affirmed the judgment as mandated by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. (People v. Smith (Sept. 20, 2005, B178315) [nonpub. opn.].) On February 20, 2007, the United States Supreme Court granted Smiths petition for certiorari, vacated the judgment, and remanded the cause to this court for further consideration in light of Cunningham.

DISCUSSION

The sole question on appeal is whether the imposition of the high term on the burglary conviction violated the Sixth Amendment as interpreted in Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856.

One of the reasons given by the trial court to justify the high term was that Smith was on parole at the time he committed the new offense. The California Rules of Court, rule 4.421(b)(4) recognizes this as a proper basis for imposing an upper term sentence. The California Supreme Court has recently construed the Apprendi prior conviction exception broadly to include 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. (People v. Black (2007) 41 Cal.4th 799, 819 (Black II).) Although whether a defendants parole status falls within the prior conviction exception was not directly presented in Black II, the Supreme Courts construction of the prior conviction exception leads us to the conclusion that it will consider a defendants status on parole to be a fact that increases the penalty for a crime beyond the prescribed statutory maximum (Apprendi, supra, 530 U.S. at p. 490) but that need not be submitted to a jury.

Also in Black II, the California Supreme Court ruled that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, [supra, 542 U.S. 296,] the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black II, supra, 41 Cal.4th at p. 813.) Therefore, the Supreme Court held, it does not violate the Sixth Amendment for a trial judge to engage in additional fact finding with respect to other aggravating circumstances once a single constitutionally compliant aggravating circumstance has been identified. (Id. at p. 816 [imposition of the upper term does not infringe upon the defendants constitutional right to a 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].)

We are bound by the Supreme Courts decision in Black II, supra, 41 Cal.4th 799. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). A review of the probation packet and the superior court file confirm that Smith was on parole at the time that he committed this burglary. Accordingly, we hold that the imposition of the upper term sentence was authorized in light of Smiths parole status at the time of the new offense, and that in light of that constitutionally proper aggravating factor the courts reliance on other aggravating factors that were neither submitted to the jury nor admitted by Smith did not violate his constitutional right to a jury trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

JOHNSON, J.

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[1] Unless otherwise indicated, all further statutory references are to the Penal Code.