P. v. Jackson

Filed 8/30/07 P. v. Jackson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yuba)

----

Defendant Ronald Gilbert Jackson entered a plea of no contest to possession of methamphetamine (Health & Saf. Code,

11377, subd. (a); further undesignated statutory references are to the Health & Safety Code) in exchange for dismissal of a remaining count and dismissal of case No. CRF03712. The court suspended imposition of sentence, placed defendant on three years of formal probation pursuant to Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (the Act) (Pen. Code, 1210 et seq.)), and ordered that he pay fees and fines, including a rehabilitation program fee of $510 pursuant to section 11372.7, and a lab analysis fee of $170 pursuant to section 11372.5.

Defendant admitted two subsequent petitions alleging violation of probation, and in both instances the court reinstated Proposition 36 probation. In response to a third petition for violation of probation, defendant admitted three of the five allegations, including allegations that he tested positive for methamphetamine and marijuana and failed to report to probation, and the remaining two allegations were dismissed. The court denied probation, sentenced defendant to the upper term of three years in state prison, minus applicable presentence custody credits, and ordered that he pay the fees and fines previously imposed.

Defendant contends on appeal that (1) the abstract of judgment should be amended to separate the base amount of fines from the penalty assessments, and (2) the courts imposition of the upper term violated his Sixth and Fourteenth Amendment rights based on the holding in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham). We agree with defendants first contention and shall direct the trial court to correct this error. We shall otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

Defendant was transported in a patrol car by Yuba County Sheriffs Deputy Stephanie Murray to the Sheriffs Department to

give a voluntary interview as a witness in an unrelated criminal matter. The next day, Murray was cleaning her patrol car when she discovered approximately 6.3 grams of methamphetamine and a glass smoking pipe left by defendant.

DISCUSSION

I

As we explained in People v. High (2004) 119 Cal.App.4th 1192, 1200, [a]lthough we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. We are similarly compelled here to direct the trial court to correct the abstract of judgment to show the separate fines, fees, penalty assessments, and surcharges it imposed instead of aggregating them together in the criminal laboratory and drug program fees. (Id. at p. 1201.)

II

Defendant claims the trial courts imposition of the upper term denied him his constitutional right to due process and to have a jury determine factors in aggravation beyond a reasonable doubt. We disagree.

Applying the Sixth Amendment to the federal 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.) 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 at pp. 413-414] (Blakely).)

Accordingly, in Cunningham v. California (2007) 549 U.S. ___, supra, [166 L.Ed.2d 856, 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 People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point, vacated in Black v. California (2007) ___ U.S. ___ [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.

Applying Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black II), this states highest 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. (Id. at p. 816.)

In deciding to impose the upper term for possession of methamphetamine, the trial court cited the fact that (1) defendants prior convictions as an adult were numerous, (2) he had served a prior prison term, (3) he was on probation when the offense was committed, and (4) his prior performance on probation and parole had been unsatisfactory.

As pointed out in Apprendi, Blakely, Cunningham and Black II, 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]; Black II, supra, 41 Cal.4th 799, 817-818.) The reasons underlying the exemption of prior convictions are as follows: (1) 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, 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. (U.S. v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) For instance, the trial court may determine and rely on the defendant's probation or parole status to impose the upper term. (Cf. U.S. v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; U.S. 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, imposition of the upper term was proper based not only on defendant's prior convictions, but also on the fact that he served a prior prison term (People v. Thomas, supra, 91 Cal.App.4th at p. 223), and was on probation at the time the offense was committed (U.S. v. Corchado, supra, 427 F.3d at p. 820), all of which are aggravating factors that did not have to be submitted to a jury. Accordingly, the trial courts reliance on those factors did not run afoul of the Sixth Amendment. The fact that the trial court relied on defendants unsatisfactory prior performance on probation is of no consequence because it relied on at least one other aggravating circumstance that was established by means that satisfy the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th 779, 816.) Because any one of those three valid aggravating factors renders defendant eligible for the upper term, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence for the possession of methamphetamine. (Id. at p. 820, italics in original.)

DISPOSITION

The judgment is affirmed. The trial court is directed to amend the abstract of judgment to separately state the base laboratory fee, its court surcharge, state penalty assessment and county penalty assessment, and to separately state the base drug program fee, its court surcharge, state penalty assessment and county penalty assessment. The trial court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

MORRISON , J.

We concur:

SCOTLAND, P.J.

ROBIE , J.

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^[1] The facts of the underlying offense are not at issue in this appeal.