P. v. Brown

Filed 8/21/07 P. v. Brown 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

----

In August 2005, a Chico police officer responded to an anonymous tip that defendant Kareem Shamar Brown was selling controlled substances from a motel room. Police records showed that defendant was on parole.

Chico police arrived at defendants room and made several attempts at knock and notice. Eventually defendant opened the door and was detained. Upon the first knock, an officer saw someone throw an object out of the bathroom window. The officer retrieved a can of hairspray, determined that its bottom could be unscrewed, and found a sock containing 10 baggies with a total of 0.44 grams of rock cocaine.^[1]

Defendant pled no contest to possession of cocaine base for sale and admitted having served a prior prison term. In exchange, a strike allegation and a count of destroying evidence were dismissed.

Defendant was sentenced to state prison for six years, consisting of the upper term of five years plus one year for the prior prison term; awarded 207 days of custody credit and 102 days of conduct credit; and ordered to pay a $400 restitution fine, a $400 restitution fine suspended unless parole is revoked, a $175 laboratory analysis fee including penalty assessments, a $525 drug program fee including penalty assessments, and a $20 court security fee. Defendant did not obtain a certificate of probable cause.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief contending his appointed trial counsel rendered ineffective assistance in that he failed to bring up any matters, and counsels only motion was denied because he didnt prepare it with any type of merit. Defendant claims counsel didnt even know what [defendants] charge was, and therefore couldnt have possibly defended him in a competent manner. Defendant challenged counsels performance via a Marsden^[2]motion, which he claims was erroneously denied. Defendant argues he took the [plea] deal because [he] wasnt willing to go to trial with a Public Defender who hasnt been representing him.

Defendants contentions regarding his trial counsels ineffectiveness challenge the validity of the plea and cannot be raised without a certificate of probable cause. (Peoplev.Mendez (1999) 19 Cal.4th 1084, 1098-1099; Peoplev.Panizzon (1996) 13 Cal.4th 68, 74-76.)

The parties filed supplemental briefing on the issue whether defendants upper term sentence violates the Sixth and Fourteenth Amendments as construed in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. The upper term was selected because Defendants prior convictions are numerous, and he was on parole when the offense was committed.

Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] 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. (Id. at p. 490 [147 L.Ed.2d at p. 455].) Under this rule, the statutory maximum is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)

In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court rejected a claim of Blakely error, concluding that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendants Sixth Amendment right to a jury trial. (Black I, at p. 1244.)

In Cunningham v. California, however, the United States Supreme Court held that under Blakely and other decisions, Californias determinate sentencing law does violate[] a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments to the extent the law allows a judge to impose an upper term sentence based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham v. California, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)

The People assert defendant has forfeited this issue because he did not raise it in the trial court. The People are wrong.

Defendant was sentenced on March 7, 2006. Before that, on June 20, 2005, our Supreme Court had decided Black I, which held that a defendant did not have a right to have a jury determine aggravating factors used to impose the upper term. (Black I, supra, 35 Cal.4th at p. 1244.) Black I was controlling law at the time of defendants sentencing. Defendant was not required to make a futile objection. (See People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___, ___ [p. 9, fn. 4].)

Defendant contends Cunningham must be interpreted literally, such that a jury trial is required to establish any factor the sentencing court wants to use, other than a prior conviction. Stated another way, factors like poor performance on probation or criminal record of increasing seriousness are subjective, require factual findings, and likewise must be determined by a jury. Defendant is incorrect.

On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [p. 17] (Black II).) The prior conviction exception include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions, including whether a defendants prior convictions are numerous or of increasing seriousness. (Id. at pp. 22-23.)

Here, the judicial record shows that defendant has prior convictions of possessing marijuana for sale, theft, and assault with a firearm. Thus, under Black II, the imposition of the upper term did not infringe on defendants right to a jury trial.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

HULL, Acting P.J.

BUTZ , J.

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^[1] The probation report is ambiguous as to whether the controlled substance is rock cocaine or methamphetamine.

^[2]People v. Marsden (1970) 2 Cal.3d 118.