P. v. Reeves

Filed 7/25/07 P. v. Reeves CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Daniel Alva Reeves pleaded no contest to one count of battery with serious bodily injury. (Pen. Code,  243, subd. (d).)[1] The trial court sentenced him to the upper term of four years. Defendant argues that the imposition of the upper term violates Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because the five aggravating factors were neither admitted by defendant nor submitted to a jury. We disagree because three of the aggravating factors are based on recidivism, and thus fall outside the rule of Cunningham, and those three factors are sufficient to justify the upper term.

I. FACTS & PROCEDURAL BACKGROUND

We take the facts from the transcript of the preliminary hearing. On May 15, 2005, defendant was in the Sentry Market in Nice, California. Alejandro Arias was in the market with his pregnant girlfriend, Denise Oliver. Defendant called Oliver names and made other comments that upset her. Arias followed defendant out of the store to tell him to stop upsetting Oliver. Defendant turned on Arias and challenged him to fight. Defendant then rushed at Arias and stabbed him three times, causing serious wounds.

The People filed an information charging defendant with assault with a deadly weapon and by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), count 1; and battery with serious bodily injury ( 243, subd. (d)), count 2. The battery count bore enhancements for personal infliction of great bodily injury and personal use of a knife. ( 12022.7, subd. (a), 12022, subd. (b)(1).)

Defendant pleaded no contest to count 2, in exchange for dismissal of count 1 and the two enhancements. He stipulated that the preliminary hearing transcript served as the factual basis for the plea, but made no specific factual admissions.

The court imposed the upper term of four years, based on five aggravating factors:

(1) defendant was armed with a knife in the commission of the battery;

(2) defendant had engaged in violent conduct indicating that he was a serious danger to society;

(3) defendant had numerous sustained juvenile delinquency petitions, involving conduct of increasing seriousness;

(4) defendant was on juvenile probation at the time he committed the battery; and

(5) defendants prior performance on probation had been poor.

The court found no mitigating factors.

II. DISCUSSION

Defendant contends that the upper term violates Cunningham because the five aggravating factors were neither admitted by defendant nor submitted to a jury. With regard to factors (1) and (2), defendant is correct. But he is not correct regarding factors (3), (4), and (5) because those factors relate to recidivism.

An upper term may not be imposed based on facts unrelated to recidivism which were neither admitted by the defendant nor found true by the jury. (Cunningham, supra, 127 S.Ct. at p. 860; see People v. Abercrombie (2007) 151 Cal.App.4th 585, 590-591 (Abercrombie).) Defendant argues that the exception of recidivism from the purview of Cunningham is limited only to the fact of a prior conviction, not the facts that he had a record of increasing seriousness, was on probation at the time of the offense, and had performed poorly on probation. We disagree.

The recidivism exception has been interpreted broadly by many courts to encompass other facts relating to a defendants recidivism. [Citations.] (Abercrombie, supra, 151 Cal.App.4th at p. 591; see People v. McGee (2006) 38 Cal.4th 682, 706-709 (McGee).)

In Abercrombie, the court held that the recidivism exception included the fact that the defendant was on parole. The court reasoned that the fact of parole related to the fact of a prior conviction, was easily determined by record review in the type of inquiry traditionally associated with judicial sentencing, and did not relate to the commission of the offense, but only to punishment. (Abercrombie, supra, 151 Cal.App.4th at p. 591.) Under this reasoning, the fact that defendant was on probation at the time of the offense clearly falls within the recidivism exception to Cunningham.

In our view, the factor of poor probation performance is self-evident from the undisputed (and admitted) fact that defendant committed a new offensethe present onewhile he was undisputedly on probation. Here, too, this aggravating factor is related to recidivism and falls outside of Cunningham.

Finally, it does not violate Cunningham for a trial court to consider the fact that defendants prior convictions are numerous and of increasing seriousness. (People v. Black ___ Cal.4th ___ (S126182, July 19, 2007) [2007 D.A.R. 11041, 11047-11049]; see People v. Tillotson ___ Cal.App.4th ___ (G035041, June 21, 2007) [2007 D.A.R. 9330, 9340].)

Factors (3), (4) and (5) are all related to recidivism. They are based on undisputed, objective facts readily determined by a trial court from official records of prior convictions. They are not subjective, qualitative factors such as callousness, dangerousness, or vulnerability of the victim.

Factors (3), (4) and (5) are sufficient to support the upper term. (See People v. Cruz (1995) 38 Cal.App.4th 427, 433.)[2] In light of the severity of these factors, any Cunningham error regarding factors (1) and (2) is harmless beyond a reasonable doubt.

III. DISPOSITION

The judgment of conviction and sentence are affirmed.

_________________________

Marchiano, P. J.

We concur:

_________________________

Swager, J.

_________________________

Margulies, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] Subsequent statutory citations are to the Penal Code.

[2] For reasons we need not discuss, defendants reliance on the plurality opinion in Shepard v. United States (2005) 544 U.S. 13, 25-26, is misplaced. (See discussion in McGee, supra, 38 Cal.4th at pp. 706-709.)

In light of our disposition, we need not reach the Peoples argument that defendant admitted the facts underlying the aggravating factors by stipulating that the preliminary hearing transcript was the factual basis for the pleadespite defendants failure to admit any specific fact relating to the aggravating factors, such as use of a knife or anything regarding his prior record. Without deciding the question, we note the Peoples argument is undermined by People v. Thoma (2007) 150 Cal.App.4th 1096, 1104.)