P. v. Vallarino

Filed 9/13/07 P. v. Vallarino CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, William Lee Evans, Judge. Affirmed.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury found defendant Daniel Corrales Vallarino guilty of two felony counts of first degree residential burglary and misdemeanor possession of burglary tools. Defendant argues the trial court erred by imposing an upper term of imprisonment for one of the burglaries. He challenges the sufficiency of the evidence to support the aggravating factors cited by the court and also contends the imposition of the upper term violated his right to a jury trial enunciated in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We affirm.

I

Facts[1] and Procedural history

On the morning of September 27, 2005, a maintenance worker at an apartment complex in Orange saw defendant driving a blue Toyota station wagon containing loot burgled from a tenants garage. On October 3, 2005, defendants neighbor interrupted his burglary of her apartment. Defendant fled with the victims jewelry and cash. Investigators arrested defendant the following day. When searching defendant, the arresting officer found in defendants pants pocket a shaved vehicle key used to open and start various Toyota models.

In April 2006, the court imposed the upper term of six years for one of the burglaries, added a consecutive subordinate one-third midterm for the other burglary, and doubled the sentence because defendant had suffered a prior strike within the meaning of the Three Strikes law. The court added a consecutive five-year enhancement for a prior serious felony (Pen. Code,  667, subd. (a); all further statutory references are to this code, unless otherwise noted), and a one-year term for prior service of a prison term ( 667.5, subd. (b)). The court stayed ( 654) sentence on possession of burglary tools. The sentence totaled 20 years eight months.

II

Discussion

A. Defendant Forfeited His Challenge to the Sufficiency of the Evidence Supporting the Upper Term

Before imposing judgment, the court referenced a preliminary, off-the-record discussion with counsel and provided an indicated sentence: This court is going to select count 2 is the intention of the court to select count 2 as the base term. Court feels that there are reasons the court could aggravate that term based upon the fact that the defendants convictions have been numerous and are of increasing seriousness. In addition, that he was he suffered he committed additional offenses after his first strike to state prison. There were additional offenses that occurred after that. He has served two prior prison terms, and there were numerous parole violations, indicated to the court of five parole violations that occurred in the pending thing. [] So I think there is a reason based upon those factors as they deal with the defendant alone to aggravate the six[-]year term, which the court because of the strike and the court has thought about the strike itself in terms of exercising my discretionary power to strike it, but its a burglary in the first degree out of [Los Angeles] in December [1994]. Similar conduct. And the court feels disinclined to strike it. So that means the term for count [2] would be 12 years. [] There is a separate distinct burglary in count 1. One-third the midterm doubled would be two years eight months. Court did not intend to add any additional sentence for count 3, the misdemeanor, which would mean that the total the court would have from counts 1 and 2, 14 years 8 months. [] There is an allegation of a [section] 667[, subdivision] (a)(1) five-year prior. [] . . . [] . . . That is 19 years 8 months. And there is [section] 667.5[, subdivision] (b). This is a distinct prior. This is June 14th, [1997], a 273 prior. Court would impose the one[-]year term there. The intention which results in a 20 years 8 months, and that is where I am presently.

Defense counsel had asked the probation officer for leniency because defendant was a heroin addict and probably under the influence at the time of the offenses. Counsel referred to his prior discussions with the court, remarking I think you know what my position is, but otherwise did not object to the courts indicated reasons. The court imposed sentence in accordance with its indicated sentence, citing defendants numerous convictions and increasing severity of his convictions up to this particular one and the fact that he had felony offenses while on parole in the past and suffered many parole violations.

Defendant argues that [a]part from the fact that [defendant] appears to have had five violations of parole during his most recent period of parole, the other factual findings stated by the sentencing court are simply not supported by the record . . . .

A trial court must state reasons for imposing an upper term sentence on any count or enhancement punishable by a range of sentences. ( 1170, subd. (a)(3); Cal. Rules of Court, rules 4.401, 4.403, 4.406(b).) But a defendant who has a meaningful opportunity to object at the sentencing hearing, and who fails to do so, forfeits most sentencing claims on appeal, including a claim the trial court failed to state reasons, gave an insufficient number of valid reasons, or that the court imposed sentence in a procedurally or factually flawed manner. (People v. Scott (1994) 9 Cal.4th 331, 354‑356.) Here, defendant failed to challenge the trial courts basis for imposing the upper term. Consequently, defendant has forfeited this argument on appeal.

In any event, the probation report reflects defendant had been convicted of six misdemeanors between 1985 and 1993. In 1994, he pleaded guilty to residential first degree burglary and received a two-year prison sentence. In 1997, he pleaded guilty to inflicting corporal injury on a child and received a four-year prison term. He violated parole five times after the 1997 conviction. The record demonstrates defendant had numerous convictions that became more serious after 1993, and his prior performance on parole was poor. Thus, there would have been no basis to reverse even if defendant had lodged the appropriate objection in the trial court.

B. Cunningham

In Cunningham, the high court reiterated earlier holdings (e.g, Blakely v. Washington (2004) 542 U.S. 296 (Blakely)) to the effect that any fact other than a prior conviction that exposes a defendant to a sentence greater than the statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, supra, 127 S.Ct. at pp. 863-864.) Examining Californias determinate sentencing law, Cunningham concluded the middle term, not the upper term, is the relevant statutory maximum. (Id. at p. 868.)

Defendant argues the trial court erroneously imposed the upper term based on several facts or factors that were not found by a jury beyond a reasonable doubt, namely, his prior convictions, an increasingly serious record, and his parole performance. The Attorney General argues defendant forfeited his claim, and that a recidivism exception to Cunningham permitted the court to impose the upper term.

Preliminarily, we reject the Attorney Generals argument that defendant forfeited his claim by failing to raise it at the sentencing hearing. An objection at the April 2006 sentencing would have been futile. (People v. Black (2005) 41 Cal.4th 799, ___ [161 P.3d 1130, 1137-1138]; People v. Sandoval (July 19, 2007, S148917) ___Cal.4th ___ [2007 Cal. Lexis 7606, at pp. 15-16, fn. 4] [defendant did not forfeit Sixth Amendment challenge by failing to object at sentencing that occurred after Black].)

But the California Supreme Court has recently decided that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (People v. Black (July, 19, 2007, S126182) ___ Cal.4th ___.) The court specifically held a defendants criminal history renders him eligible for the upper term sentence, and that the trial court rather than a jury may properly decide whether a defendants convictions are numerous or increasingly serious. (Id. at p. ___; People v. McGee (2006) 38 Cal.4th 682.)

Here, the trial court relied exclusively on defendants criminal history to impose the upper term sentence for count 2. Accordingly, defendants challenge to the upper term fails.[2]

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

OLEARY, J.

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[1] We present an abbreviated version of the facts because they are only marginally relevant to the issues defendant raised in this appeal.

[2] We vacated submission of the case and invited supplemental briefing addressing recent authority applying Cunningham. The briefing predated Black II.