P. v. Williams

Filed 10/26/06 P. v. Williams CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, Philip S. Gutierrez, Judge. Affirmed.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________

David T. Williams appeals from the judgment entered following his conviction by a jury on one count of possession of a controlled substance, one count of misdemeanor assault and three counts of misdemeanor vandalism. Williams contends there is insufficient evidence to support imposition of the upper-term sentence for possession of cocaine and that sentence was imposed in violation of his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Williams was charged by information on July 5, 2005 with one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) (count 1), two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))[1] (counts 2 (Audelio Bazan) and 3 (Luis Bazan)) and four counts of misdemeanor vandalism (§ 594, subd. (a)) (counts 4-7). As to the controlled substance count, the information specially alleged Williams had suffered two prior felony possession convictions and was therefore ineligible for probation. (§ 1203, subd. (e)(4).) At a hearing on September 19, 2005, during which the court found Williams competent to stand trial after doubt had been raised by defense counsel, Williams pleaded not guilty and denied the special allegation.

2. Summary of the Evidence Presented at Trial

a. The People’s evidence

On June 3, 2005 Luis Bazan and his two uncles, Audelio Bazan and Rogelio Bazan, were at an automobile repair shop in Pomona owned by Luis’s[2] father when Williams entered the shop. After walking around inside the shop, Williams went outside where he climbed on top of a car and attempted to get on the roof of the shop. Williams did not respond to Audelio’s inquiries whether Williams needed help. Williams picked up a metal pipe approximately two feet long and two inches in diameter; re-entered the shop; went into a storage room; exited the storage room; and broke the windows and windshields of three cars inside the shop with the metal pipe, as well as the window of an office building owned by the Pomona School District, which was adjacent to the shop. At some point Williams stated, “There she is,” although there were no females present.

Luis went inside the shop’s office, called the police emergency number and locked the door, which Williams eventually managed to kick open. Luis hurried to get out of the office. Williams, knocking down the computers and other items in the office, followed behind him and Audelio while still carrying the pipe, but Williams did not swing it or try to hit them. The police eventually arrived after Luis called for assistance several more times. They detained Williams outside the repair shop as he was attempting to gain entry into another business. After Williams was handcuffed and stopped resisting the officers, Pomona Police Officer Art Cruz recovered a baggie containing two rocks of cocaine from Williams’s pocket.

b. The defense’s evidence

Williams testified he went to the repair shop, which was next door to the apartment Williams shared with his mother, to confront his former girlfriend, Teresa Tenblador. Williams explained he had been having problems with Tenblador since they had ended their relationship four years earlier. According to Williams Tenblador was engaging in prostitution near Williams’s apartment and had made several attempts on his life, but Williams was unable to obtain assistance from the police or successfully utilize other legal means to stop her behavior. Williams testified the Bazans were hiding Tenblador at the shop, where he claimed Tenblador had been arrested for prostitution on six occasions, and her voice could be heard on the recording of one of Luis’s calls to the police emergency operator. He further testified he broke only one window on one car because he wanted Tenblador to come out of hiding so he could talk with her. He claimed the rock cocaine found by Officer Cruz had not been in his possession and he did not know where it came from.

3. The Jury’s Verdict and the Trial Court’s Sentence

The jury found Williams guilty of possession of a controlled substance and three counts of misdemeanor vandalism for damage to the automobiles. It also found him not guilty of assault with a deadly weapon, but guilty of the lesser included offense of misdemeanor assault on Audelio. The jury acquitted Williams of assault with a deadly weapon and misdemeanor assault upon Luis, as well as misdemeanor vandalism for damage to the Pomona School District’s office window.

After the jury verdict was read, counsel for Williams stated she was prepared to proceed immediately to sentencing. The trial court considered Williams’s probation report, which recommended imposition of the upper term for possession of a controlled substance because there were two aggravating factors -- threat of great physical harm (Cal. Rules of Court, rule 4.421(a)(1))[3] and Williams’s on-probation status at the time of the offense (rule 4.421(b)(4)) -- and no mitigating factors. The court agreed and sentenced Williams to three years in state prison: The upper term of three years on count 1 for possession of a controlled substance and concurrent six-month jail terms for the misdemeanor convictions. The court identified three aggravating factors: (1) Williams was armed with a weapon during the commission of the crime (rule 4.421(a)(2)); (2) Williams was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences were imposed (rule 4.421(a)(7)); and (3) Williams’s prior convictions as an adult were numerous (rule 4.421(b)(2)).[4]

DISCUSSION

1. Williams Has Forfeited His Claim of Sentencing Error

By failing to challenge the evidentiary basis for the trial court’s discretionary sentencing decision at the time of sentence, Williams has forfeited his argument on appeal there is insufficient evidence to support the aggravating factors relied upon by the court: “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).)

Acknowledging this general rule of forfeiture, Williams nonetheless observes a defendant need not object to preserve for appeal the argument a conviction is not supported by sufficient evidence. (People v. Neal (1993) 19 Cal.App.4th 1114, 1121.) Williams contends this exception should be equally applicable to his claim of sentencing error based on insufficiency of the evidence. No such exception exists in an appeal from the trial court’s sentencing determination. (See Scott, supra, 9 Cal.4th at pp. 353-354 [forfeiture doctrine applies to cases “in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it . . . misweighed the various factors, or failed to state any reason or give a sufficient number of valid reasons”; “the ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal”].)

People v. Butler (2003) 31 Cal.4th 1119, cited by Williams for the proposition that the insufficient-evidence exception to the forfeiture doctrine is not strictly limited to judgments, provides no assistance in the context of alleged sentencing error. In Butler the Court held the defendant did not forfeit his right to appeal the sufficiency of the evidence supporting an order requiring him to submit to an HIV blood test by failing to object. (Id. at p. 1126.) The Court, however, expressly limited its holding: “Our conclusion in this case is controlled not only by the specific terms of [Penal Code] section 1202.1 but also by the general mandate that involuntary HIV testing is strictly limited by statute. For this reason, nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331, that absent timely objection sentencing determinations are not reviewable on appeal, subject to the narrow exception articulated in People v. Smith (2001) 24 Cal.4th 849 [for unauthorized sentences or sentences entered in excess of jurisdiction].” (Id. at p. 1128, fn. 5.)

Williams also asserts that, although not explicit, his counsel’s comments regarding the proposed sentence put the trial court on notice that Williams objected to the second and third aggravating factors found by the court (concurrent sentences on the misdemeanors; numerous prior convictions). After stating its intention to sentence Williams to the upper term based on the aggravating factors and “because I am not sure -- given the jail situation in the county, I am not sure what it would mean to max him out on misdemeanors,” the court asked counsel for comments. Defense counsel responded, “I do agree with the court’s assessment of the jail situation. In addition to that, the vandalism charges and the assault charge all stem from one course of conduct, an outrage of violence incident [sic]. But I would ask the court to consider, according to the defendant this would be his first prison commitment. This seemed to be an incident . . . out of context of what his other crimes involved, even though they are lengthy, a lot of misdemeanors, homeless-type crimes, trespassing and what have you. I know there was previous drug possession for sale or something, maybe 15, 17 years ago, but other than that, his conduct recently really has been fairly good. In fact, he is on probation now for just a 12500. So I would ask the court to consider the 16 months and run the rest concurrent. But I will submit on that.”

Defense counsel’s isolated statement the vandalism charges and the assault charge stemmed from one course of conduct without reference to the sentencing standard to which it pertained (see rule 4.425(a) [identifying criteria affecting the decision whether to impose consecutive rather than concurrent sentences]) or further legal argument was insufficient to apprise the court Williams objected to the propriety of considering imposition of concurrent terms on the vandalism and assault counts as an aggravating factor. Additionally, defense counsel’s comments on Williams’s prior convictions -- which included a concession Williams’s prior convictions were “lengthy” -- in absence of proper objections to the other grounds cited by the court was insufficient to permit the court an opportunity to reweigh the aggravating factors to the extent the court were to conclude the objections were valid. “Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. . . . As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.” (Scott, supra, 9 Cal.4th at p. 353; see People v. DeSoto (1997) 54 Cal.App.4th 1, 10 [ “Having raised no specific objections at the time of sentencing, the defendant did not give the trial court a genuine opportunity to correct any errors it may have made. As such, he waived his right to raise the [sentencing] claims on appeal.”].)

2. The Trial Court Did Not Abuse Its Discretion in Sentencing Williams

Even if Williams had not forfeited his challenge to imposition of the upper term for the felony possession conviction, his argument lacks merit. “‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [“‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’”].) “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.)

Williams contends there is insufficient evidence he was armed with or used a weapon at the time of the commission of the crime because the jury acquitted Williams of assault with a deadly weapon and there was no evidence he had the metal pipe when the officers found the cocaine in his pocket. (Rule 4.421(a)(2) [“The defendant was armed with or used a weapon at the time of the commission of the crime.”].) Williams, however, does not dispute he was carrying a metal pipe when he was following Luis and Audelio and used the pipe to break the window of at least one car. This was sufficient to support the court’s finding Williams was armed with a weapon; there is no requirement the weapon be a “deadly” weapon. Moreover, it is certainly a reasonable inference from the fact Williams was detained moments after he left the repair shop that the cocaine found in his pocket was also in his possession when he was vandalizing the shop. Thus, this significant aggravating factor was properly considered by the court.

Williams also asserts the court erred in considering that concurrent rather than consecutive sentences were imposed for the misdemeanor convictions because the vandalism counts and assault arose out of a single period of aberrant behavior. (Rule 4.425(a).) Although Williams’s point may be well taken, inasmuch as the court properly considered Williams’s lengthy history of criminal convictions (rule 4.421(b)(2) [“The defendant’s prior convictions as an adult . . . are numerous or of increasing seriousness.”]) -- two felonies and seven misdemeanors -- in addition to the fact Williams was armed during the commission of the crime, it is not reasonably probable the trial court would have chosen a lesser sentence in absence of this aggravating factor.

3. The Trial Court’s Sentencing Decision Did Not Violate Williams’s Sixth Amendment Right to a Jury Trial

Williams contends the trial court’s imposition of the upper term on the possession count based on factual determinations made by the court, not the jury, violated his right to a jury trial under Blakely, supra, 542 U.S. at page 301, in which the United States Supreme Court reaffirmed its holding in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] that, “‘[o]ther 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.’” (See also United States v. Booker (2005) 543 U.S. 220, 231 [125 S.Ct. 738, 160 L.Ed.2d 621] (Booker).)

The contention a defendant’s constitutional right to a jury trial is violated by the trial court’s identification of aggravating factors and imposition of an upper term was rejected in People v. Black (2005) 35 Cal.4th 1238, 1244, in which the California Supreme Court held “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” As the Court explained, “The jury’s verdict of guilty on an offense authorizes the judge to sentence a defendant to any of the three terms specified by statute as the potential punishments for that offense, as long as the judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules.” (Id. at pp. 1257-1258.)

Other than his challenge to the sufficiency of the evidence supporting the aggravating factors, which we have rejected, Williams does not contend the trial court exercised its discretion in an unreasonable fashion or the sentence imposed was in any way inconsistent with the requirements of the Penal Code or the California Rules of Court. Blakely, therefore, provides no basis to set aside or modify Williams’s sentence. However, while this case has been pending on appeal, the United States Supreme Court granted certiorari in Cunningham v. California (Apr. 18, 2005, A103501 [nonpub. opn.], cert. granted sub nom. Cunningham v. California (Feb. 21, 2006) ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47]), a case involving the effect of Blakely, supra, 542 U.S. 296 and Booker, supra, 543 U.S. 220 on California sentencing law. Accordingly, although we deny Williams’s Blakely claim under the authority of Black, we do so without prejudice to any relief to which he might be entitled based on the United States Supreme Court’s decision in Cunningham.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

WOODS, J.

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[1] Statutory references are to the Penal Code unless otherwise indicated.

[2] Because Luis, Audelio and Rogelio share a surname, we refer to them by their first names not out of disrespect but to avoid confusion. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

[3] References to rule or rules are to the California Rules of Court.

[4] The probation report stated Williams had two prior felony convictions (possession of a controlled substance for sale and possession of a controlled substance) and seven misdemeanor convictions (false identification to an officer, battery, possession of a controlled substance, trespass, false imprisonment and two convictions for possession of paraphernalia) from 1989 through 2004.