P. v. DiBlasi

Filed 6/25/07 P. v. DiBlasi CA4/2

Opinion on rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Peter Quon, Jr., Supervising Deputy Attorneys General, and Lynne McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Francis DiBlasi of robbery (Pen. Code, 211)^[1]and second degree burglary ( 459). The jury also found true that defendant had a previous felony conviction in 1977, within the meaning of sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). The court sentenced defendant to a total term of imprisonment of 10 years, which was composed of the upper term of five years in state prison on the robbery conviction, doubled to 10 years under the Three Strikes law. The court also imposed the upper term of three years on the burglary conviction, but stayed it pursuant to section 654.

On appeal, defendant contends that: 1) there was insufficient evidence to support the finding that he was the named person in the court documents presented as proof of his previous conviction; and 2) the court erred in imposing the upper terms, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). Defendant has submitted a petition for rehearing asserting that Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), requires that a jury find aggravating factors true before a trial court may impose the upper term. We affirm.

FACTUAL BACKGROUND

On the afternoon of February 8, 2005, defendant entered a bank, approached a teller window, and handed the bank teller a note indicating that he was executing a robbery. The teller became scared when she saw defendant put his hand on the grip of a gun sticking out of the front of his pants. The teller gave him $1,740 out of the top drawer and then set off the silent alarm. The police apprehended defendant near the bank.

During an interview with an investigator, defendant admitted that he committed the underlying crime.

ANALYSIS

I. There Was Sufficient Evidence to Establish That Defendant Was the Named Person in the Court Documents Regarding His Prior Conviction

Defendant contends that the trial court erred by finding and instructing the jury that he was the person whose name appeared on the certified court documents admitted to establish his prior conviction for robbery in 1977. He argues that because the court documents did not include a photograph, fingerprint, birth date, signature, or any other identifying information, the evidence was insufficient to show that he was the same Francis DiBlasi who was previously convicted of robbery. We find no error.

The prosecution submitted exhibit No. 20 in support of the prior conviction allegation. The certified court documents contained in exhibit No. 20 show that Frank Di Blasi aka Francis Di Blasi was charged in the Superior Court of Stanislaus County with committing attempted robbery on October 19, 1976, and robbery on September 27, 1976 (case No. 141184); that he pled guilty to robbery; and that he was sentenced to state prison on March 9, 1977. Defendant argues that there must be something more than a similarity of name to prove that he is the same person who was previously convicted. However, [i]t has long also been the rule in California, in the absence of countervailing evidence, that identity of person may be presumed, or inferred, from identity of name. [Citations.] (People v. Mendoza (1986) 183 Cal.App.3d 390, 401; see also People v. Luckett (1969) 1 Cal.App.3d 248, 253.) Here, there was no countervailing evidence. Moreover, defendants name is sufficiently uncommon that the trial courts finding of identity of person is supported by an inference based on identity of name. (People v. Sarnblad (1972) 26 Cal.App.3d 801, 805-806.)^[2]

Defendant argues that the name in the exhibit No. 20 documents is not even identical to his name. He points out that the last name of the defendant in the 1977 case is written as two wordsDi Blasiwhereas, his last name in the current case is written as one wordDiblasi. We find this argument to be meaningless, considering that defendants probation report shows that he has nine aliases, some with his last name spelled as one word and some with it spelled as two words. Moreover, we note that the notice of appeal defendant filed in the current case spells his last name as one word, while the motion for appointment of counsel on appeal shows that defendant signed his last name as two words.

Even if we assume that the court erred in finding, based on the certified court documents, that defendant was the same person who was previously convicted of robbery, no prejudicial harm appears. The criminal history part of defendants probation report, which contains identifying information, shows that defendant was convicted on March 9, 1977, of first degree robbery in Modesto, California, and that he was sentenced to state prison for that crime. The certified court documents at issue show that Francis

Di Blasi was convicted of first degree robbery on March 9, 1977, in Modesto, California, and was sentenced to state prison. Defendant has not argued that the probation report is incorrect, and he has made no effort to show that he was not previously convicted of this crime. Thus, we reject his argument.

II. The Trial Court Properly Imposed the Upper Term

In his opening brief, defendant contended that the imposition of the upper term sentences on the robbery and burglary convictions deprived him of his federal and state constitutional rights to a jury trial and proof beyond a reasonable doubt under Blakely, supra, 542 U.S. 296. On January 17, 2007, we filed an unpublished opinion rejecting defendants claim. Then, on January 22, 2007, the Supreme Court issued its decision in Cunningham, supra, 127 S.Ct. 856, holding that the imposition of an upper term sentence under Californias determinate sentencing law, based on a judges factual findings, violates a defendants federal constitutional right to a jury trial. On February 2, 2007, defendant petitioned this court for a rehearing on his sentencing issues based on Cunningham. We granted the petition solely as to the issues raised in the petition, namely, the effect of the Cunningham decision on the trial courts imposition of the upper terms. We conclude that the upper terms may be affirmed based on recidivist aggravating factors.

In Blakely, the United States Supreme Court affirmed 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. (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi).) In Cunningham, supra, 127 S.Ct. at page 860, the United States Supreme Court held that the imposition of an upper term sentence under Californias determinate sentencing law, based solely on a judges factual findings, violates a defendants Sixth and Fourteenth Amendment right to a jury trial.

At the outset, the People assert that defendant forfeited his Blakely claim by failing to raise it at the sentencing hearing. We disagree. At the time of defendants sentencing and subsequent appeal, the decision in People v. Black (2005) 35 Cal.4th 1238 (Black) was the controlling precedent. Black held that Blakely did not apply to Californias determinate sentencing law. (Black, supra, at p. 1244.) In light of that holding, it would have been futile for defendant to raise a Blakely objection at sentencing. Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. (People v. Welch (1993) 5 Cal.4th 228, 237.) Thus, defendant did not waive his claim of Blakely error by failing to object in the trial court. Nonetheless, his contention fails.

Both Blakely and Apprendi recognize that the fact of a prior conviction can be found by a judge, even though any other fact that increases the maximum statutory penalty for a crime must be found by a jury. (Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.) The Apprendi exception for prior convictions has been broadly interpreted by California courts. (People v. Belmares (2003) 106 Cal.App.4th 19, 27-28; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.)

In this case, the court reviewed the probation officers report, which listed three factors in aggravation relating to defendant, including that his convictions were numerous or of increasing seriousness, he had served prior prison terms, and his prior performance on probation or parole was unsatisfactory. The record clearly shows that the trial court relied on the fact of defendants numerous prior convictions in making its sentencing decision. His criminal record included 10 felony convictions. Furthermore, the court relied on defendants unsatisfactory performance on probation and prior prison terms to justify the upper terms. These factors are so closely related to the prior convictions themselves that they come within the prior conviction exceptions contained in Blakely and Apprendi. Thus, the upper terms were supported by factors that did not need to be found true by a jury. (Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.)

Defendant concedes that the court relied upon several factors related to his criminal record. Nonetheless, he argues that his upper term sentences still violated Blakely, supra, 542 U.S. 296, because the court also relied upon other factors that were unrelated to his criminal history. The record does reflect that the court improperly relied on factors not found true by a jury, including that defendant showed a lack of candor to the probation officer with regard to his heroin use; he lied when he claimed that he did not remember the offense; he lied when he said he had never done anything like this before; and he showed no remorse for the victim. However, in view of the courts proper reliance on the recidivist factors, any error in relying on the other factors was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Price (1991) 1 Cal.4th 324, 492, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1164.)

We conclude that imposition of the upper terms in this case did not violate defendants federal constitutional right to a jury trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

McKINSTER

J.

MILLER

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise noted.

^[2] Defendant has requested that this court take judicial notice of certain printouts from internet Web site pages designed to search for persons by name, in support of his argument that his name is common. By order of April 13, 2006, this court reserved ruling on the request for judicial notice for decision with the appeal. Defendants request is denied. (Evid. Code, 452, subds. (g) & (h).)