P. v. Hill

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

----

Defendant John C. Hill was placed on three years of probation after entering a plea of no contest to failure to register as a sex offender. (Pen. Code, 290, subd. (a)(1)(d); further undesignated references are to this code.) He admitted two subsequent probation violations, the second of which resulted in revocation of his probation and imposition of the upper term of three years in state prison. He appeals the trial courts imposition of the upper term as a violation of his

Sixth Amendment rights under Cunningham v. California (2007)

549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

Defendant was required to register as a sex offender, having previously been convicted of forcible rape ( 261, subd. (a)(2)). On March 8, 2005, after admitting to sheriffs deputies that he was not in compliance with that requirement, defendant was arrested and charged with failure to update registration annually in violation of section 290, subdivision (a)(1)(d), a felony (Count 1), along with a special allegation for having suffered a prior strike within the meaning of sections 1170.12, subdivision (a) and 667, subdivisions (b) through (i).

On August 10, 2005, defendant entered a negotiated no contest plea to Count 1 in exchange for no immediate state prison and dismissal of the strike allegation with a Harvey^[2]waiver.

On December 5, 2005, the court placed defendant on three years of formal probation.

On January 3, 2006, the probation department filed a petition alleging defendant violated the terms and conditions of his probation by failing to report to his probation officer as required.

On February 2, 2006, the probation department filed an amended petition alleging defendant committed an additional violation by testing positive for methamphetamine.

On March 8, 2006, defendant admitted he violated probation as alleged in the amended petition. The court reinstated probation and ordered that defendant serve 30 days in jail.

On April 8, 2006, the probation department filed a second petition alleging defendant again violated probation by failing to report as required.

On June 14, 2006, defendant admitted the alleged violation as alleged in the April 8th petition.

On July 19, 2006, the court terminated probation and sentenced defendant to the upper term of three years on Count 1.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends the court erred in imposing the upper term because he was entitled to a jury determination of all of the aggravating factors beyond a reasonable doubt.

Applying the Sixth Amendment 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] (Apprendi), that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 302-304 [159 L.Ed.2d 403, 413-414] (Blakely).)

Accordingly, in Cunningham v. California, supra, 549

U.S. at page ___ [166 L.Ed.2d at p. 864], the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Ibid., overruling on this point in People v. Black (2005) 35 Cal.4th 1238 (Black), vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [127 S.Ct. 1210; 167 L.Ed.2d 36].) Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt.

The People assert that defendant forfeited his claim because he did not raise it in the trial court. We disagree. Defendant was sentenced on July 19, 2006. Before that, on June 20, 2005, our Supreme Court had decided Black, supra, 35 Cal.4th 1238, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Because Black was controlling law at the time of defendants sentencing, he was not required to make a futile objection at that time. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)

The People argue alternatively that defendants claim fails on the merits because it falls within the recidivism exception to the Cunningham rule. With this we agree.

As pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment jury-trial guarantee does not apply to prior convictions that are used to impose greater punishment. (See, e.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) The reasons for the exemption for the fact of a prior conviction are as follows: the fact of a prior conviction does not relate to the commission of the offense for which the defendant is being sentenced (Apprendi, supra, 530 U.S. at p. 496 [147 L.Ed.2d at p. 458]), and (2) the certainty that procedural safeguards attached to any fact of prior conviction . . . mitigate[s] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a fact increasing punishment beyond the maximum of the statutory range. (Id. at p. 488 [147 L.Ed.2d at p. 454, fn. omitted.) It follows that the exception applies not only to the fact of a prior conviction, but also to an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) Therefore,

the fact of a prior conviction, and related facts . . . may be judicially found at sentencing. (United States v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) For example, the trial court may determine and rely on the defendants probation or parole status to impose the upper term. (Cf. United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-42; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the prior conviction exception extends to subsidiary findings such as whether a defendant was under court supervision when he or she committed a subsequent crime].)

Here, the trial court imposed the upper term based on defendants numerous prior convictions, the fact that he served three prior prison terms and the fact that his prior performance on parole was unsatisfactory. The court also noted that there were no factors in mitigation. Imposition of the upper term was proper based not only on defendants prior convictions, but also on the fact that he served three prior prison terms (People v. Thomas, supra, 91 Cal.App.4th at p. 223), both of which are aggravating factors that did not have to be submitted to a jury.

As for the courts reference to defendants prior performance on parole, given that the supplemental report speaks to defendants performance on both probation and parole, and that the colloquy between the court and counsel (and defendant) focused specifically on defendants performance on probation, it

is unclear whether the court was relying on one or the other or both. In the event the court was referring to defendants prior unsatisfactory performance on probation, that aggravating factor was effectively established by defendants admitted probation violation and therefore need not have been submitted to a jury. Alternatively, in the event the court was indeed referring to defendants prior performance on parole, any such consideration was harmless because one valid aggravating factor is sufficient to expose defendant to the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)

Defendant suggests that every aggravating factor, even a prior conviction, must be found beyond a reasonable doubt, citing Cunningham as authority for that proposition. Defendant is wrong. Neither Cunningham nor the cases preceding it so hold. In fact, the Apprendi court stated 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. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455] (emphasis added).) We read that to mean that in cases where the aggravating factor used to impose the upper term is something other than a prior conviction, the defendant is entitled to two things: a jury trial on the aggravating factor and proof of that factor beyond a reasonable doubt. It follows, then, that in the case of a prior conviction or some other fact of recidivism, the defendant has no entitlement to either of

those rights. We conclude there is no sentencing error.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P.J.

I concur:

CANTIL-SAKAUYE , J.

I concur in the result:

RAYE , J.

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^[1] The facts of the underlying offense are not at issue in this appeal and, in light of defendants plea and stipulation to a factual basis therefore, are only briefly summarized from the probation report.

^[2]People v. Harvey (1979) 29 Cal.3d 754 (Harvey).