P. v. Wiles

Filed 9/21/07 P. v. Wiles CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Michael Alan Wiles appeals from a seven-year sentence imposed by the trial court following a jury trial, contending that imposition of the upper term violated his federal constitutional right to a jury trial. In light of the California Supreme Courts recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II ), we affirm the judgment.

Procedural Background

On March 1, 2006, an information was filed by the Humboldt County District Attorney charging defendant with first-degree burglary (Pen. Code, 459; count one),[1] two counts of false imprisonment ( 236; counts two and three), two counts of dissuading a witness by force or threat ( 136.1, subd. (c)(1); counts four and five), unlawful entry into a dwelling house ( 602.5, subd. (a); count six), and two counts of battery ( 242; counts seven and eight). Counts one through five alleged a prior felony

conviction and prison term ( 667.5, subd. (b)).

The trial court granted defendants motion to strike counts four and five. A jury returned verdicts finding defendant guilty on the remaining counts. Defendant admitted the prior conviction and prison term.

The trial court sentenced defendant to state prison for seven years four months.

Factual Background

At about 9:30 p.m. on February 2, 2006, Dana S. and her 13-year-old son Matthew were watching television in their home. Dana S. heard sounds coming from the kitchen and upon investigation found a man she identified as defendant standing in the kitchen.

Dana S. and her son fled through the front door, but defendant grabbed the boy outside the front door. Dana S. grabbed her son and he eventually broke free from defendants grasp. They ran to a neighbors house and Dana S. saw defendant re-enter her home.

A sheriffs department sergeant subsequently located defendant in the neighborhood. She detected the odor of alcohol coming from defendant. Dana S. and her son identified defendant in an in-field show up. A week or two after the incident, Dana S. discovered some jewelry missing from the kitchen.

Defendant presented testimony from himself and an acquaintance that he consumed a large quantity of whiskey in the afternoon and early evening on February 2. Defendant had no recollection of any events later in the evening on February 2.

Discussion

The trial court sentenced defendant to the upper term of six years on the first-degree burglary conviction, imposed two consecutive eight-month terms on counts two and three, and stayed the sentences on the remaining counts under section 654. The trial court imposed the upper term after it found the following factors in aggravation: (1) the victims were particularly vulnerable; (2) defendants prior convictions are numerous and recently more serious; and (3) defendant was on parole at the time the offenses were committed. The court emphasized defendants criminal record, stating in particular, the prior convictions as outlined on pages seven, eight, nine of the Probation Officers report [do] have felony convictions suffered 1990 in Oregon; again, 1991 in Oregon; and 2003 in this county. Each does have violations of parole attached as there are probation violations for other matters. So it does appear that pursuant to the rules, the probation officer is correct that the aggravated term of six years is the appropriate term.

In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court concluded Californias determinate sentencing law violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 876].) Relying on Cunningham, defendant contends the trial court imposition of the upper term in the present case violated his Sixth Amendment right to a jury trial. This contention fails under Black II, supra, 41 Cal.4th 799.[2]

In Black II, our Supreme Court noted that in Blakely v. Washington (2004) 542 U.S. 296, the high court explicitly recognized the legitimate role of judicial factfinding in indeterminate sentencing, in which the judge may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. (Black II, supra, 41 Cal.4th at pp. 812-813.) Accordingly, the Court concluded that 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 Court added that [t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense do not pertain to whether the defendant has a legal right to a lesser sentenceand that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Ibid.) Because the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term under Californias determinate sentencing law, 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 for Sixth Amendment purposes. (Ibid.)

Applying those conclusions to the facts before it, Black II noted that the United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. . . . recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Black II, supra, 41 Cal.4th at p. 818 [citations omitted].) The Court held that defendants criminal history alone rendered him eligible for the upper term sentence, stating defendants criminal history and the jurys finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, 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 offense of continuous sexual abuse of a child. (Id. at p. 820.)

Similarly, here the trial court identified two recidivist factors: defendants prior convictions are numerous and increasing in seriousness, and he was on parole at the time he committed the present offenses. The court also pointed out that defendants prior performance on probation was unsatisfactory. Under Black II, these were permissible court findings for Sixth Amendment purposes, and the findings rendered defendant eligible for the upper term. Defendant suffered no Sixth Amendment violation by the trial court exercise of its discretion in selecting the upper term.

Disposition

The trial court judgment is affirmed.

GEMELLO, J.

We concur.

SIMONS, Acting P.J.

NEEDHAM, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

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

[2] We requested and received supplemental letter briefs from the parties regarding Black II, supra, 41 Cal.4th 799.