P. v. Patterson

Filed 8/14/07 P. v. Patterson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. W. Robert Fawke, Judge. Affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci, and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

An information charged defendant with (1) kidnapping with intent to commit rape under Penal Code section 209, subdivision (b)(1) (count 1)^[1]; (2) kidnapping under section 207, subdivision (a) (count 2); (3) assault with a firearm under section 245, subdivision (a)(2) (counts 3 and 4); (4) making criminal threats under section 422 (counts 5 and 6); (5) felony false imprisonment under sections 236 (count 7); and (6) possessing a firearm as a felon under section 12021, subdivision (a)(1) (count 8). The information specially alleged (1) personal use of a firearm in a specified felony under section 12022.53, subdivision (b) (counts 1 and 2); (2) personal use of a firearm under section 12022.5, subdivision (a) (counts 3-8); (3) a prior prison term under section 667.5, subdivision (b); and (4) a prior serious felony conviction under section 667, subdivision (a) and strike under section 667, subdivisions (b) through (i).

The trial court granted a defense motion of acquittal of counts 2 and 7. The jury found defendant guilty of count 8 and not guilty of counts 1 and 3 through 6. Defendant admitted the prior prison term and the prior serious felony conviction and strike.

The trial court sentenced defendant to state prison for six years, comprised of the upper three-year term for count 8, doubled to six years by the strike. The trial court dismissed the remaining enhancements.

On appeal, defendant contends that the trial court erred in sentencing him to the upper term under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). For the reasons set forth below, we shall affirm the judgment.

I

FACTUAL BACKGROUND^[2]

Defendant tried to tuck his loaded .380-caliber semiautomatic handgun underneath the front passenger seat of the car in which he was riding when a police officer pulled the car over. The parties stipulated that defendant had a prior conviction for felony possession of a firearm by a felon.

Defendant admitted that the gun was his. He also acknowledged pleading guilty to a 2002 residential burglary and serving a two-year state prison term for the offense. Defendant was on parole when the car was pulled over. A condition of his parole prohibited defendant from having a weapon.

Defendant claimed that he decided to retrieve the gun from his house in order to protect himself once he learned that the drivers destination was an apartment complex where gangsters sold drugs.

II

ANALYSIS

Citing Cunningham, supra, 127 S.Ct. 586, Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 230 S.Ct. 2348] (Apprendi), defendant argues that imposing the upper term violated his federal constitutional rights to a jury trial and due process because the findings in aggravation were made by the trial court and not by a jury.

At the sentencing hearing, the trial court recognized that defendant (1) had an extensive record; (2) was aware he should not possess a firearm but chose to do so; and (3) had a list of almost 20 aliases. The court also noted that the excuses proffered by defendant for possessing the firearms were flimsy. However, the trial court explicitly stated that the court was sentencing defendant to the aggravated term of three years because of his extensive record . . . . As discussed above, the parties stipulated that defendant had a prior conviction for felony possession of a firearm by a felon. Defendant also pleaded guilty to burglary and served two years in state prison. In fact, defendant was on parole when the car was pulled over for the current offense.

In Cunningham, supra,127 S.Ct. 856, 868, the United States Supreme Court held that the middle term in Californias determinate sentencing law was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, at p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998)523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi: [T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] (Cunningham, at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488 & 490.)^[3] The court explained Californias determinate sentencing law violates Apprendis bright-line rule: Except for 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. [Citation.] (Cunningham, at p. 868.)

While this appeal was pending, the California Supreme Court decided People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, ___ [2007 WL 2050875] (Black). There, the court held that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black, at p. 7, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black, at pp. 10‑12.)

Here, the factor relied upon by the trial court in sentencing defendant to the upper term was within the Almendarez-Torres exception: defendants numerous prior convictions (Black, supra, 2007 WL 2050875 at p. 11). It follows that the trial court did not err by imposing the upper term based on this and other aggravating factors.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

KING

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] The factual background will be abbreviated to reflect facts related to the only count resulting in a guilty verdict.

^[3] In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)