P. v. Athey

Filed 6/14/07 P. v. Athey 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Peter M. Schultz, Judge.

Rex A. Williams, 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, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Timothy James Athey, pled guilty on June 20, 2006 to second degree murder (Pen. Code,  187, subd. (a), count one) and felony unlawful taking of a vehicle (Veh. Code, 10851, subd. (a), count four).^[1] Allegations that appellant committed robbery ( 211, count two) and burglary ( 459, count three) were dismissed. Appellant also admitted a prior prison term enhancement (Pen. Code,  667.5, subd. (b)).

On September 8, 2006, the trial court sentenced appellant to the upper term on count four of three years plus one year for the prior prison term enhancement. Appellants determinate sentence is four years plus an indeterminate sentence of 15 years to life on count one. Appellant was awarded custody credits and ordered to pay a restitution fine. Appellant filed a timely notice of appeal but did not obtain a certificate of probable cause. Appellant contends the trial court violated his right to a jury trial when it imposed the upper term on count four in violation of Blakely v. Washington (2004) 542 U. S. 296 (Blakely) and Cunningham v. California (2007) __ U. S. __ [127 S.Ct. 856] (Cunningham). We will affirm the trial courts sentence.

FACTS

Kings County Sheriffs deputies were dispatched on May 7, 2005 to a residence in Armona where they found Russell James Dahlman flailing his arms, lying in a pool of blood from wounds to his head. Dahlman was airlifted to the University Medical Center in Fresno where he died several days later. Acquaintances of Dahlman told investigators that he owned a Dodge Aries and had hired appellant to help him mow the lawn at the residence where Dahlman was found.

On May 8, 2005, deputies found Dahlmans car in a parking lot in Lemoore. A detective questioned appellant on May 12, 2005. Appellant knew Dahlman for 15 years and was living with him. A Mr. Ramos got into a fight with Dahlman, striking him several times in the face. Appellant borrowed Dahlmans car to visit an acquaintance and later returned the car to Dahlmans residence.

Investigators learned appellant took Dahlmans cell phone and sold it. They found a tree branch on the roof of the residence where the victim was attacked that had blood, hair, and skin on it. Investigators also found a shirt appellant was wearing the night of the offense. The shirt had blood stains. Appellant was initially arrested for attempted murder. The charge was changed after Dahlman died. Appellant later admitted he took Dahlmans car and left it in Lemoore because he was afraid it would link him to the attack on Dahlman. Investigators questioned Rischelle Roy who told them several incriminating statements appellant made to her the day Dahlman was attacked.

The probation report listed appellants lengthy criminal history. In 1987, appellant was convicted of second degree burglary, a felony. Appellant had misdemeanor convictions in 1991 and 1992 for theft, unauthorized connection of a cable line, public intoxication, fighting in public, and for a failure to appear in court. Appellant had a felony theft conviction in Oregon in 1993. In 1995, appellant was convicted of possession of forged checks. Between 1995 and 2003, appellant was paroled and returned to custody five times. In 2003, appellant had a misdemeanor conviction for inflicting corporal injury on a spouse or cohabitant.

Though the probation report noted seven other aggravating factors, the court did not refer to them during sentencing.^[2] The probation report noted a single mitigating factor, that appellant voluntarily acknowledged wrongdoing at an early stage of the criminal process. At sentencing prior to imposing the upper term on count four, the trial court found that appellant had numerous convictions and his conduct constituted a danger to society. The court found the appellants aggravating factors outweighed any mitigating factors.

DISCUSSION

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi ), a five-justice majority of the United States Supreme Court held, Other 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. (Id. at p. 490.) Blakely held that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the court held that, under Californias determinate sentencing scheme, the upper term can only be imposed if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, ___ U.S. ___ [127 S.Ct. 856].)

Blakely describes three types of facts that a trial judge can properly use to impose an aggravated sentence: (a) the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301); (b) facts reflected in the jury verdict (id. at p. 303, italics omitted); and (c) facts admitted by the defendant (ibid., italics omitted). The fact of prior convictions clearly comes under the prior-conviction exception to Blakely.

It is settled that only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Here, the trial court relied on appellants recidivism to impose the aggravated term as permitted by Blakely and Cunningham. The court did not expressly find any mitigating circumstances, though it stated that the aggravating factors outweighed any mitigating factors. Accordingly, we reject appellants contention that the court committed Blakely or Cunningham error.

Although the trial court relied on appellants lengthy criminal record to impose the aggravated term as permitted by Blakely and Cunningham, it also referred to appellants conduct as being a risk to society.^[3] Even if the court erroneously relied on this factor under Cunningham, we find the number and seriousness of appellants prior convictions make the error harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. (Washington v. Recuenco (2006) __ U.S. __ [126 S.Ct. 2546].)

DISPOSITION

The judgment is affirmed.

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

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

^[2] The other seven aggravating factors were that the crime involved great violence and a high degree of cruelty, appellant was armed with a weapon, the victim was smaller and older than appellant and therefore more vulnerable, the appellant threatened witnesses or dissuaded them from testifying, the crime involved great monetary value, the appellant took advantage of a position of trust, and the appellant engaged in conduct that posed a great danger to society. The probation report also noted three factors justifying consecutive sentences which were: the offenses were independent, the crimes involved great violence, and the crimes were committed separately.

^[3] The trial courts reference to appellants conduct as being a danger to society is ambiguous. This statement could refer to appellants current criminal conduct, but it could also refer to his criminal recidivism. In light of our ruling, we leave this ambiguity for resolution at another time.