P. v. Ford

Filed 8/21/07 P. v. Ford CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Omega Ray Ford appeals from a judgment convicting him of possession of a firearm by a felon. (Pen. Code,  12021, subd. (a)(1).) He contends the trial court erred in imposing the upper term sentence based in part on aggravating circumstances that were unrelated to recidivism and not admitted or found true by the jury. In light of our Supreme Courts recent decision in People v. Black (July 19, 2007, S126182) ___ Cal. 4th ___ [2007 Cal. Lexis 7604] (Black II), we affirm.

Procedural Background

On May 19, 2006, the Contra Costa County District Attorney charged defendant by information with one count of attempted murder (Pen. Code,  187, 664), with several enhancements relating to that count, and a second count of being a felon in possession of a firearm (Pen. Code,  12021, subd. (a)(1)). The information also alleged four prior felony convictions and two prior prison terms (Pen. Code,  667.5, subd. (b)). Defendant stipulated to a prior felony conviction for purposes of the second count. The jury acquitted defendant of the attempted murder charge, but convicted him of being a felon in possession of a firearm.

The court admitted defendants prior conviction packet into evidence to enable the jury to consider the allegations under Penal Code section 667.5, subdivision (b). The packet documented two prior felony convictions, one on October 19, 1993, for battery with serious bodily injury (Pen. Code,  243, subd. (d)), and another on September 11, 1997, for being a felon in possession of a firearm (Pen. Code,  12021, subd. (a)(1)). The record also showed that on January 30, 2003, defendant had been placed on probation for three years following his conviction for violating Health and Safety Code section 11352, subdivision (a). The jury found that defendant had been convicted of two prior felonies as defined in Penal Code section 667.5, subdivision (b), and that he had failed to remain free of custody, prison, or new felony convictions during the five-year period immediately preceding the current offense.

After noting seven aggravating circumstances and three potential mitigating circumstances, the court sentenced defendant to the aggravated term of three years for being a felon in possession of a firearm. Over defendants objection that he was entitled to a jury trial on these issues, the trial court found two aggravating circumstances relating to the crime: causing great bodily injury, violence, which could disclose a high degree of callousness and defendant was armed. (Cal. Rules of Court, rule 4.421(a).) The court found five additional aggravating circumstances relating to the defendant: he has engaged in violent conduct as previously stated by the court. His prior convictions are numerous and increasing in seriousness. He has had two prior prison terms. He was on probation when this crime occurred. And his prior performance on probation and parole were unsatisfactory. (Cal. Rules of Court, rule 4.421(b).) The court also imposed two consecutive one-year terms based on the jurys findings under Penal Code section 667.5, subdivision (b). Defendant filed a timely notice of appeal. After both parties had filed their appellate briefs, our Supreme Court decided Black II, supra, ___ Cal. 4th ___ [2007 Cal. Lexis 7604].

Discussion

Defendant contends the trial court violated his federal constitutional rights to jury trial and due process by imposing the three-year upper term sentence based on aggravating circumstances that were unrelated to recidivism and neither admitted nor found by the jury. Relying primarily on Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], defendant argues that because the middle-term sentence was the  relevant statutory maximum for Apprendi-Blakely^[[1]] purposes, factors used to justify the upper term other than those related to recidivism were required to be found by the jury if not admitted by the defendant. Consequently, he argues, the trial court erred in imposing the upper term based in part on non-recidivism aggravating circumstances not established by findings of the jury.

While this argument had some plausibility following the decision in Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856], the more recent intervening decision in Black II is controlling on this court and disposes of defendants contention. [I]mposition 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. (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, p. *29].) Here, defendants record of convictions showed conclusively that he was on probation at the time he violated Penal Code section 12021, subdivision (a)(1). The trial judge based her imposition of the upper term sentence in part on her finding of the aggravating circumstance that defendant had been on probation at the time he committed the instant offense. (Cal. Rules of Court, rule 4.421(b)(4).) Thus, without considering the potential applicability of other aggravating circumstances on which the trial judge relied, the finding that defendant was on probation at the time he committed the instant offense rendered defendant eligible for the upper term. (Black II, supra, at p. ___ [2007 Cal. Lexis 7604, at p. *29].) Having found one legally sufficient basis for imposition of the upper term, the courts factfinding on . . . additional aggravating circumstances [was] not unconstitutional. (Id. at p. *28.) Thus, under Black II the trial courts exercise of its discretion in imposing the upper term was not a violation of either due process or defendants Sixth Amendment right to a jury trial.

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

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[1] (Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466.)