P. v. Bradburn

Filed 8/28/07 P. v. Bradburn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Kent Bradburn appeals following his convictions based upon a plea of guilty to sale or transportation of a controlled substance (Health & Saf. Code,  11379, subd. (a)) and one count of possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code,  11370.1, subd. (a)). He also admitted an enhancement allegation pursuant to Penal Code section 12022, subdivision (a), that he suffered a prior narcotics conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c.) In another case he entered a plea of guilty to possession of ammunition (Pen. Code,  12316, subd. (b)(1)) and misdemeanor possession of marijuana (Health & Saf. Code,  11357, subd. (b)).

The cases were consolidated for sentencing. The court imposed the upper term of four years for the sale of a controlled substance, and consecutive sentences of one-third of the middle term on the remaining counts. It also imposed a one-year enhancement pursuant to Penal Code section 12022.2, and three years pursuant to Health and Safety Code section 11370.2, subdivision (c) for the prior narcotics conviction, for a total prison term of nine years eight months.

Defendant contends that the case must be remanded for resentencing because the court relied upon four aggravating factors not found by a jury, in violation of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 868] (Cunningham). Defendant also contends that, with respect to two of the four aggravating factors, the court violated the state law prohibition of dual use of facts, by using facts underlying an enhancement to aggravate the term.

We shall hold, based upon the California Supreme Courts recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II), that no Cunningham error occurred. We shall also hold that defendant waived his objection to the dual use of facts articulated by the court in making its sentencing choices, and that, in any event, any error is harmless.

Discussion

I.

Cunningham Error

In selecting the upper term, the court found no factors in mitigation, and the following factors in aggravation: (1) defendant was armed with a weapon at the time of the commission of the offense (California Rules of Court, rule 4.421(a)(2));[1] (2) the manner in which the offense was carried out showed planning and sophistication (rule 4.421(1)(8)); (3) defendant had prior convictions that are numerous, or of increasing seriousness (rule 4.421(b)(2)); and (4) defendants prior performance on probation was unsatisfactory (rule 4.421(b)(5)).

While this appeal was pending, the California Supreme Court decided Black II, supra, 41 Cal.4th 799. The court held so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813.)

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) The latter exception was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224 (the Almendarez-Torres exception). Therefore, if the trial court has found at least one aggravating factor that falls within either of these exceptions, the federal Constitution does not preclude it from imposing an upper term sentence based on that and other aggravating factors that do not fall within these exceptions. (Black II,supra, 41 Cal.4th at pp. 819-820.)

Here, at least one of the aggravating factors on which the trial court relied was within the Almendarez-Torres exception., i.e., that defendants prior convictions were numerous and increasingly serious.[2] In Black II,supra, 41 Cal.4th at pp. 819-820, the court rejected the argument that this factor falls outside the Almendarez-Torres exception because it entails factfinding beyond the bare fact of the prior conviction. The court reasoned that, like the fact of the prior convictions, the determination whether the convictions are numerous or of increasing seriousness requires only a consideration of the number, dates, and offenses, and the range of punishment for each offense. (Ibid.) The trial courts finding that defendants prior convictions were numerous or of increasing seriousness is amply supported by the record. The probation report reflects five prior convictions between 1988 and 2004, three for misdemeanor Vehicle Code violations, one for misdemeanor vandalism and one in 1995 for possession of a controlled substance for sale. Even excluding the 1995 felony conviction, this record supports a finding that the prior convictions were numerous. (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].) The record also supports the finding that defendants convictions were increasingly serious, because his current convictions were for more serious multiple felony violations, for which the punishment ranged up to a four-year term of imprisonment. (People v. Clark (1992) 12 Cal.App.4th 663, 666 [[t]he offense for which a defendant is being sentenced may be considered in determining that his or her convictions are of increasing seriousness].)

We conclude, pursuant to the Almendarez-Torres exception, the court properly found defendants criminal record established the aggravating factor defined by rule 4.421(b)(2). This factor rendered him eligible for the upper term. Therefore, in accordance with our Supreme Courts holding in Black II, supra, 4 Cal.4th 799, defendant was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by the imposition of the upper term.

II.

Dual Use of Facts

Defendant also argues that the court violated the state law proscription against dual use of facts by (1) relying upon the fact that he was armed as an aggravating factor because this fact was also the basis for imposing the Penal Code section 12022, subdivision (a) enhancement; and (2) relying upon the 1995 conviction for possession of a controlled substance as one of the prior convictions supporting its finding that defendants prior convictions were numerous or of increasing seriousness because this prior was also the basis for the three-year enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c) for being a repeat drug offender.

The contention is waived because defendant did not raise any objection to the dual use of the arming and prior conviction at the sentencing hearing.[3] (See People v. Scott (1994) 9 Cal.4th 331, 352.) In any event, any error with respect to the courts statement of reasons is harmless. When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492.) The court found four aggravating factors, and found no factors in mitigation. Therefore, even without the two aggravating factors defendant contends were improper, it is not reasonably probable that the court would select anything other than the aggravated term. (Ibid. [error invalidating several aggravating factors did not require remand for resentencing where three aggravating factors were valid and court found no factors in mitigation].)

Conclusion

The judgment is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

MARGULIES, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

[1] All references to rules are to the California Rules of Court.

[2]Black II, supra, 41 Cal.4th 799 holds the existence of only one aggravating factor properly found by the court suffices to avoid any violation of defendants Sixth Amendment rights. It therefore is not necessary to decide whether the court also could have properly found the aggravating factors that defendant was armed, or that his prior performance on probation was unsatisfactory.

[3] Our conclusion, ante, that the 1995 felony conviction is not necessary to support the courts finding that defendants prior convictions were numerous or increasingly serious also defeats defendants argument that, in violation of state sentencing rules, the court improperly used the 1995 conviction both to support the rule 4.421(b)(2) aggravating factor and as the factual basis for enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c) for being a repeat drug offender. Since the courts finding that defendants convictions were numerous or increasingly serious did not depend upon the 1995 conviction, there was no dual use of facts.