P. v. Robinson

Filed 7/25/07 P. v. Robinson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Dennis A. McConaghy, Judge. Affirmed.

Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Sabrina Y. Lane-Erwin, Lynne G. McGinnis and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Curtis Purnell Robinson guilty of selling cocaine base. (Health & Saf. Code, 11352, subd. (a).) In a bifurcated trial, the trial court found true the allegations that defendant had two prior convictions of Health and Safety Code section 11351.5, within the meaning of Health and Safety Code section 11370.2, subdivision (a), three prior prison convictions, within the meaning of Penal Code section 667.5, subdivision (b), and one prior strike conviction (Pen. Code,  667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The court sentenced defendant to a total term of 19 years in state prison, which included the upper term of five years for selling cocaine base.

Defendants sole contention on appeal is that the sentence violates his Sixth Amendment right to trial by jury under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and United States v. Booker (2005) 543 U.S. 220. Defendant has submitted supplemental briefing 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 AND PROCEDURAL BACKGROUND

On March 17, 2005, police detective Mario Dorado went to an area known for high narcotics sales activity, dressed in plain clothes. He bought $20 worth of rock cocaine from defendant.

A jury convicted defendant of selling cocaine base (Health & Saf. Code, 11352, subd. (a)), and the trial court found the prior conviction allegations true.

Defendant filed a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), asking the court to dismiss his prior strike conviction. At the sentencing hearing, after hearing defense counsels argument on the Romero motion, the court stated that it went through the probation officers report and highlighted all of defendants prior convictions. The court added that its highlighter pen ran out of ink before it got to the end of the list. The court remarked that defendants record spoke for itself and cited nine of defendants prior convictions, noting that there were even more that it did not name. The court stated that defendant was exactly the sort of person the strike legislation was designed to apply to. It then imposed a total sentence of 19 years, comprised of the upper term of five years for selling cocaine base, doubled in light of the prior strike conviction, plus three years for each of the two prior narcotics convictions, and one year for each of the three prior prison convictions. Defendant filed a timely appeal.

In a separate case, defendant pled guilty to inflicting corporal injury on a spouse (Pen. Code, 273.5, subd. (a)) and assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) (the domestic violence case). The trial court sentenced defendant to six years in prison in that case, at the same sentencing hearing on the cocaine sales case. Defendant filed a notice of appeal in the domestic violence case and this court consolidated the two appeals. We note that defendant has not raised any issues on appeal pertaining to the domestic violence case.

ANALYSIS

The Trial Court Properly Imposed the Upper Term

Defendant contends that his Sixth Amendment right to a jury trial, as defined in Blakely, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), was violated when the trial court imposed the upper term sentence. We disagree and conclude that the present sentence 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, supra, 530 U.S. at p. 490.) 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, 237-238.) 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 four factors in aggravation, including that defendants convictions were numerous or of increasing seriousness, defendant was on probation at the time of the current offense, and defendants prior performance on probation or parole was unsatisfactory. These factors are so closely related to the prior convictions themselves that they come within the prior conviction exceptions contained in Blakely and Apprendi. Moreover, the record clearly shows that the trial court relied on defendants numerous prior convictions in making its sentencing decision. Thus, the upper term was supported by factors that did not need to be found by a jury. (Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.)

We acknowledge defendants assertion that the court did not state its reasons for selecting the upper term; however, [a]bsent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence. (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888.) Furthermore, the court specifically cited nine of defendants prior convictions and noted that those were only some of defendants convictions. In fact, the probation report showed that defendants criminal history dated back to 1983, and included at least six felony convictions and 16 misdemeanor convictions. Although the court denoted these convictions in the context of the Romero motion, the record clearly demonstrates that the court gave significant consideration to defendants recidivism in determining his sentence. Thus, in view of the record, it is reasonable to infer that the court relied on defendants numerous prior convictions in selecting the upper term. Defendants recidivism alone was sufficient to support the trial courts selection of the upper term. (Apprendi, supra, 530 U.S. at p. 490; People v. Osband (1996) 13 Cal.4th 622, 728.)

Defendant claims that the courts failure to make any statement regarding its reasons for imposing the upper term makes it impossible to determine what weight the court gave to each of these factors and what sentence it might have imposed if it was aware that it was precluded from considering some of the aggravating factors. Even if the court erred in failing to state its reasons for imposing the upper term, we need not remand the case for resentencing. As the trial court pointed out when it denied defendants Romero motion, defendant was a textbook recidivist who could not stay out of trouble. Furthermore, the record clearly shows that defendant was on probation at the time he committed the current crime, and that he had violated his probation and parole countless times. It is inconceivable that the trial court would impose a different sentence if we were to remand for resentencing. Accordingly, we find the trial courts failure to state reasons for imposing the upper term to be harmless. (See People v. Champion (1995) 9 Cal.4th 879, 934.)

Defendant further argues that the court impermissibly violated the prohibition against the dual use of facts by using the same fact (prior prison terms) for imposing the upper base term and for enhancing his sentence under Penal Code section 667.5, subdivision (b). There is no indication in the record that the court relied on, or would have relied on, the fact of defendants three prior prison terms as an aggravating factor in imposing the upper term. We further note that defendants extensive criminal record, the likes of which we have rarely seen, renders his dual use of facts argument futile. His long list of convictions was clearly not exhausted.

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

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

GAUT

J.

MILLER

J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.