P. v. Ballinger

Filed 6/22/07 P. v. Ballinger 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

----

Defendant was convicted by a jury of reckless driving while fleeing from a peace officer (Veh. Code,  2800.2), vehicle theft (Veh. Code,  10851, subd. (a)), and driving a vehicle while in possession of not more than one ounce of marijuana (Veh. Code,  23222, subd. (b)). Following discharge of the jury, the court found true allegations that defendant had been convicted of five prior felonies for which prison terms were imposed. (Pen. Code,  667.5, subd. (b); unspecified section references that follow are to the Penal Code.)

Defendant was sentenced to an aggregate state prison term of eight years and eight months as follows: the upper term of three years on the fleeing charge; one-third the middle term (eight months) on the vehicle theft charge; five one-year enhancements for the prior felonies. He appeals contending the trial court violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) in imposing the upper term on the fleeing charge. We affirm the judgment.

Facts and Procedural History

In light of the issue raised on appeal, a detailed description of the underlying offenses is unnecessary.

Wendy W. owned a 1995 Pontiac Sunfire that turned up missing on April 24, 2004. The next day, Redding Police Officer Les James was on patrol in a marked police car when he observed defendant driving Wendy W.s vehicle. Defendant was traveling at a high rate of speed and failed to stop at a stop sign.

James attempted to make an enforcement stop by activating the lights on top of his patrol car and his siren. Instead of pulling over, defendant began to accelerate and led James on a high speed chase through residential areas for over eight miles. During the chase, defendant reached speeds of up to 75 or 85 miles per hour, ran several stop signs and stop lights, passed several cars by crossing a double yellow line, and drove recklessly through private property.

Eventually, defendant lost control of the vehicle, drove off the road and struck a tree. A search incident to defendants arrest turned up less than an ounce of marijuana in a cylindrical key chain holder.

Discussion

As stated previously, defendant was sentenced on the fleeing charge to the upper term of three years. As aggravating factors warranting the upper term, the trial court found the offense was committed while defendant was on parole and defendant has a history of poor performance on parole or probation.

Defendant contends imposition of the upper term violated his rights under the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).

In Apprendi, the United States Supreme Court held 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. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) In Blakely, the Supreme Court applied Apprendi to a state court sentence. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].) In Cunningham, the Supreme Court applied Apprendi to Californias determinate sentencing law and 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. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)

The People contend defendant forfeited this issue on appeal by failing to raise it in the trial court. We disagree. Defendant argued both before and after trial that it was inappropriate for the trial court to consider his performance on probation or parole as a sentencing factor without a jury determination. In fact, defendant went one step further and argued such factor could not be considered at all because it had not been presented at the preliminary hearing.

The People next contend the factors considered by the trial court fall within the exception to Apprendi permitting the use of a defendants prior criminal record as a sentencing factor. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455]; accord, United States v. Booker (2005) 543 U.S. 220, 231 [160 L.Ed.2d 621, 641-642].) It has been held that this prior record exception encompasses not only the fact of a prior conviction, but any matter related to recidivism that is not an element of the crime committed, such as the fact the defendant served a prison term. (People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.)

The People argue the fact that defendant committed the current offenses while on parole or probation for prior offenses and defendants poor performance on parole directly relate to his criminal record and, therefore, fall within the prior convictions exception to Apprendi.

Defendant contends the prior convictions exception has been more narrowly construed, both by the United States Supreme Court in Shepard v. United States (2005) 544 U.S. 13 [161 L.Ed.2d 205] (Shepard) and by the California Supreme Court in People v. McGee (2006) 38 Cal.4th 682 (McGee). We disagree.

In Shepard, the United States Supreme Court held that a sentencing court may not look to police reports or the like to determine if a prior conviction qualifies as the type that would subject the defendant to a minimum prison sentence. (Shepard, supra, 544 U.S. at p. 16 [161 L.Ed.2d at p. 211].) In McGee, the California Supreme Court concluded Apprendi does not apply to preclude a sentencing court from determining, based on the records available, whether a prior conviction from another state qualifies as a strike. (McGee, supra, 38 Cal.4th at p. 687.)

These cases address the question of what evidence related to a prior conviction may be considered by a sentencing court in determining the nature of that conviction and, in turn, the proper punishment for the current crime. The present matter does not concern what evidence may be considered in deciding a sentencing factor but whether the sentencing factor itself may be considered.

We need not decide in the present matter whether the factors considered by the trial court in imposing the upper term fall within the prior convictions exception to Apprendi. Apprendi error is reviewed under the harmless-beyond-a-reasonable-doubt standard. (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466].) Therefore, the question on appeal is whether a reasonable jury necessarily would have found, beyond a reasonable doubt, that defendant committed the current offenses while on parole and that defendants performance on probation or parole has been unsatisfactory. As we shall explain, we conclude the jury would have so found.

The probation report reveals that on August 8, 1988, defendant was convicted of burglary ( 459) and was placed on probation for three years. On January 23, 1989, and again on April 21, 1989, his probation was revoked and reinstated.

On March 5, 1990, while still on probation, defendant was convicted of burglary and sentenced to 16 months in prison. He was paroled on September 2, 1990. On October 21, 1991, defendant was again convicted of burglary and this time sentenced to three years in prison. Less than two years later, on August 2, 1993, defendant was convicted of misdemeanor vandalism ( 594, subd. (a)).

On April 15, 1994, defendant was convicted of petty theft with a prior theft offense ( 666) and was placed on probation for one year. Before the end of that year, on March 1, 1995, defendant was returned to prison.

On March 20, 1996, defendant was convicted of a drug offense and sentenced to prison for 16 months. On December 27, 1996, he was returned to prison.

On July 29, 1998, defendant was convicted of another drug offense and sentenced to prison for three years. On March 3, 2000, he was convicted of another drug offense and again sentenced to three years in prison.

On October 14, 2000, defendant was convicted of possessing a controlled substance in prison and sentenced to three years. On August 28, 2002, and again on May 27, 2003, defendant was returned to confinement.

On December 21, 2003, defendant was convicted of misdemeanor drug offenses and placed on Proposition 36 probation. However, on January 30, 2004, and February 2, 2004, defendant opted out of Proposition 36 probation and was placed on regular probation for three years.

The current offense was committed on April 25, 2004.

Defendant does not dispute any of the foregoing information from the probation report or suggest there is any evidence to the contrary. At the sentencing hearing, defendant testified on his own behalf in an attempt to convince the court he should be sent to a treatment program. During that testimony, defendant admitted that after his many releases on parole, he would resort to his old criminal ways for lack of a viable alternative. He acknowledged failing even to report to parole after release and absconding.

Based on the foregoing, we are persuaded beyond a reasonable doubt that if the jury had been asked to decide whether defendant was on parole when the current offenses were committed and whether defendants prior performance on parole or probation was unsatisfactory, it would have so found.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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