P. v. Young

Filed 8/29/07 P. v. Young CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Jeremy Young stabbed a man during an altercation and then fled on a motorcycle. He led the responding police units on a high speed pursuit, during which defendant ran two red lights and traveled at speeds over 90 miles per hour. Defendant eventually lost control of the motorcycle and slid into a fence, whereupon he tried to flee on foot but was apprehended.

A jury convicted defendant of assault with a deadly weapon (count one) and evading a peace officer in pursuit with a willful and wanton disregard for the safety of persons and property (count two). He was sentenced to the upper term of four years on count one and a consecutive term of eight months on count two.

On appeal, defendant contends the trial court erred in imposing the upper term based on aggravating factors that were not charged in the information, found by a jury, or admitted by defendant, and made the same error in imposing a consecutive term. He also claims the court violated the rule against a dual use of facts. (Cal. Rule of Courts, rule 4.425(b)(1).) Lastly, he contends the abstract of judgment must be amended to reflect the correct amount of restitution fines imposed by the court. We agree with the latter contention. In all other respects, we shall affirm the judgment.

DISCUSSION

I

Defendant contends that the trial courts imposition of the upper term violated his constitutional rights as set forth in Apprendi v. New Jersey(2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham).

Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].) In Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Ibid., overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)

Here, defendant was sentenced to the upper term on count one based on the following aggravating factors: (1) he has engaged in violent conduct that indicates a serious danger to society; (2) his prior convictions as an adult are numerous or of increasing seriousness; and (3) he was on probation when the crimes were committed.

All of these factors are related to his prior convictions and, as pointed out in Apprendi, Blakely and Cunningham, the Sixth Amendment jury-trial guarantee does not apply to prior convictions that are used to impose greater punishment. (E.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)

However, according to defendant, the aforesaid exception applies only to the fact of a prior conviction. In his view, the court went beyond the mere fact of conviction and impermissibly engaged in making qualitative, subjective findings. We disagree.

Apprendi does not preclude a court from making sentencing determinations related to a defendants recidivism (People v. McGee (2006) 38 Cal.4th 682, 707) or from examining court records pertaining to a defendants prior conviction to determine the nature or basis of the conviction, as this is the type of inquiry that judges traditionally perform as part of the sentencing function. [Citation.] (Id. at p. 709.) The prior conviction exception applies not only to the fact of a prior conviction, but also to an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. (People v. Thomas (2001) 91 Cal.App.4th 212, 223.)

For example, the fact of a prior conviction, and related facts such as the timing of the conviction and the type and length of sentence imposed, may be judicially found at sentencing. (U.S. v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) Thus, the trial court may determine and rely on the defendants probation or parole status to impose the upper term. (Cf. United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142 (district court did not violate defendant's Sixth Amendment jury rights by finding the offense was committed while the defendant was on probation); United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the prior conviction exception extends to subsidiary findings such as whether a defendant was under court supervision when he or she committed a subsequent crime].)

Accordingly, defendants probationary status at the time of the present crime falls within the prior conviction exception because it is premised on his prior criminal adjudication, does not relate to the facts underlying the commission of the current offense, and is verifiable by review of court records. (See People v. Thomas, supra, 91 Cal.App.4th at pp. 216-223.)

Similarly, the court can assess whether the defendants prior convictions are numerous or of increasing seriousness. Here, the record reflects that defendant was convicted of carrying a concealed firearm, harassment, and public use of marijuana in 1999; harassment, distributing a controlled substance, and assault in 2000; possessing marijuana with the intent to distribute it in 2001; possessing marijuana concentrate in 2002; and felony stalking in 2003. Without question, his prior convictions are numerous.

Accordingly, because at least two of the sentencing factors considered by the court did not violate Cunningham, and made defendant eligible for the upper term, we need not decide whether the trial courts reliance on defendants pattern of violent conduct violated Cunningham. (People v. Black (July 19, 2007, S126182) __ Cal.4th __ (hereafter Black II).)

Black II held that when one aggravating circumstance falls within an exception to the Apprendi/Blakely/Cunningham rule, and thus need not be found true by a jury beyond a reasonable doubt, that aggravating circumstance alone makes the defendant eligible for the upper term; consequently, the Sixth Amendment permits the trial court to rely upon any number of aggravating circumstances factors in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. __ [at p. 12]; orig. italics.)

This is so because the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is legally essential to the punishment (Blakely, supra, 542 U.S. at p. 313), that is, to any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 863]). (Black II, supra, ___ Cal.4th at p. __ [at p. 11].) Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, 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. (Black II, supra, ___ Cal.4th at p. __ [at p. 13].)

Hence, [t]he issue to be determined in each case is whether the trial courts fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed. (Black II, supra, __ Cal.4th at p. __ [at p. 16]; orig. italics.) As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional. (Id. at pp. __ [at pp. 16-17].)

Defendants prior criminal convictions were an aggravating factor upon which the trial court properly relied even though it was not submitted to the jury. Because that fact alone made defendant eligible for the upper term, his constitutional attack on the sentence fails. (Black II, supra, __ Cal.4th at pp. __ [at pp. 11, 12, 16-17].)

In any event, we are satisfied beyond a reasonable doubt that the trial court would have imposed the upper term based solely upon defendants prior convictions. Hence, the courts reliance on other factors was harmless. (See Washington v. Recuenco (2006) 548 U.S. ___, ___ [165 L.Ed.2d 466, 473, 476-477].)

II

Defendant contends that imposition of a consecutive term on count two also violated Apprendi and its progeny because the factors used to justify the consecutive term were neither charged in the information, nor found true beyond a reasonable doubt by a jury.

The contention fails for reasons stated in Black II, supra, __ Cal.4th at pages __ [at pages 24-27].

III

Next, defendant contends the trial court erred in using the same sentencing factor to impose the upper term on count one and a consecutive sentence on count two, in violation of California Rules of Court, rule 4.425(b)(1) (further references to rules are to the California Rules of Court).

The People retort that by failing to raise the issue at sentencing, defendant forfeited his right to raise it on appeal. We agree. Absent a timely objection in the trial court, claims involving the courts failure to properly make or articulate its discretionary sentencing choices--such as double-counting a particular sentencing factor--are forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353.)

Defendant counters the rule of forfeiture does not apply because, in his view, he did not have a meaningful opportunity to object. (People v. Gonzalez (2003) 31 Cal.4th 745, 755 (hereafter Gonzales).) Defendant misperceives the parameters of a meaningful opportunity to object.

Gonzalez explained that sentencing issues are not waived if the trial court gives the defendant an adequate opportunity to voice an objection or to seek a clarification or a change in the sentence at any time during the sentencing hearing. . . . The court need not expressly describe its proposed sentence as tentative so long as it demonstrates a willingness to consider such objections. . . . (Gonzalez,supra, 31 Cal.4th at p. 752.) Gonzalez does not require that the court explicitly offer the parties an opportunity to object; only that it remain open to objections.

Here, after the parties argued their respective positions at sentencing, the trial court stated the factors in aggravation upon which it relied and imposed the term recommended in the probation report. Although the court had not previously notified the parties that it was intending to rely on the factor of the threat of real possibility of additional injuries and violence to other people in relation to the pursuit, defendant nonetheless had ample opportunity to lodge an objection. Indeed, before the court ended the sentencing hearing, it asked if defendant had any questions about his right to appeal, and permitted him to discuss the matter with counsel. At any point during this time period, defense counsel could have objected to the allegedly improper dual use of sentencing factors. Having failed to do so, defendants claim of sentencing error is forfeited. (Compare People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1224 [after placing defendant on probation, the trial court immediately declared a recess without hearing from either party, depriving them of a meaningful opportunity to object].)

In any event, the court did not violate the rule against dual use of facts. It imposed the upper term based in part on the fact that defendant had engaged in violent conduct indicating a danger to society (rule 4.421(b)(1)), which is supported by the evidence that he stabbed the victim in the face with a knife. It imposed a consecutive sentence because of the threat [or] real possibility of additional injuries and violence to other people stemming from defendants reckless flight during the high speed pursuit following the stabbing. Thus, the court did not engage in an impermissible dual use of facts because those facts were distinct from one another.

IV

Defendant observes that the trial court imposed a $400 restitution fine pursuant to Penal Code sections 1202.4 and 1202.45, rather than the $1,000 amount recommended in the probation report. He contends, and the People concede, that the abstract of judgment must be amended because it incorrectly reflects fines in the amount of $1,000. We agree and shall order the trial court to amend the abstract of judgment accordingly.

DISPOSITION

The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that restitution fines under Penal Code sections 1202.4 and 1202.45 were imposed in the amount of $400, not $1,000, and to send a certified copy

of the amended abstract to the Department of Corrections and Rehabilitation.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

BUTZ , J.

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