P. v. Williams

Filed 6/21/07 P. v. Williams CA1/3

Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which has significant effects on Californias criminal sentencing scheme. We affirm.

PROCEDURAL BACKGROUND

In December 2005, we issued an opinion affirming defendants convictions for commercial burglary and receiving stolen property. (People v. Williams (Dec. 28, 2005, A104274) [nonpub. opn.]). Relying on People v. Black (2005) 35 Cal.4th 1238, we rejected defendants argument that his right to jury trial was violated by the courts finding of aggravating factors at sentencing.

On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of its decision in Cunningham, supra, 127 S.Ct. 856. Pursuant to its mandate, we have recalled the remittitur. We have reexamined our initial opinion in this case, and incorporate it by reference, and we have received supplemental briefing from the parties.

The Trial Courts Sentencing Decision

The trial court imposed the upper term of three years for defendants burglary conviction, based on several aggravating factors: the way the crime was carried out indicated professionalism; planning was evident; defendant had previously engaged in violent conduct that indicated he was a serious danger to society; defendant had numerous prior convictions as an adult and sustained petitions as a juvenile; defendant was on felony probation when the crime was committed; and defendants past performance on probation and state parole was unsatisfactory. The trial court denied probation, noting defendant had nine prior felonies and there has not been any long period of time in which [he has] been out of custody. Defendants upper term sentence on the burglary conviction was doubled to six years under the Three Strikes Law, and six consecutive one-year terms were imposed based on defendants six prior prison terms. A middle term was also imposed, and stayed, on the conviction for receiving stolen property. A $2,400 restitution fine was also imposed, and an equal parole revocation restitution fine was stayed.

ANALYSIS

In Cunningham, Californias determinate sentencing law was held to violate a defendants right to jury trial because California statutes permitted trial judges to determine facts used to impose an upper term sentence by a preponderance of the evidence. (Cunningham, supra, 127 S.Ct. at p. 868.)

The People argue that no Cunningham error occurred, because the court relied in part on factors related to defendants prior convictions, as to which he had no right to jury trial under Almendarez-Torres v. United States (1998) 523 U.S. 224. On this record we have no difficulty concluding beyond a reasonable doubt, that the court would have imposed the same sentence if it only considered defendants nine prior felony convictions and status on parole at the time of the offense and not the aggravating factors that Cunningham requires be found by a jury. (Chapman v. California (1967) 386 U.S. 18.) Accordingly, we affirm.

DISPOSITION

For the reasons expressed in this opinion and our nonpublished opinion filed in December 2005, the judgment is affirmed.

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Siggins, J.

We concur:

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McGuiness, P.J.

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Parrilli, J.

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