P. v. Johnson

Filed 9/28/07 P. v. Johnson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael K. Kellogg, Judge. Affirmed.

Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Gerrod Johnson appeals from the judgment entered following a jury trial in which he was convicted of burglary (Pen. Code, 459) and a court trial in which he was found to have suffered one prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code,  1170.12, subds. (a)-(d) and 667, subds. (b)-(i)), and a prior serious conviction within the meaning of Penal Code section 667, subdivision (a)(1), and was found to have served two prison terms within the meaning of Penal Code section 667.5, subdivision (b).[1] The court sentenced appellant to a total of 17 years in prison, comprised of the upper term of six years, doubled by reason of the strike conviction, plus five years for the prior conviction found true pursuant to Penal Code section 667, subdivision (a)(1)[2]. He contends imposition of the upper term sentence violated Blakely v. Washington[3] and his federal constitutional rights to a jury trial and due process of law. For reasons stated in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On September 5, 2005, Joel Sandoval, Adam Litt, Thomas Cavanagh and Sigi Kupferman were students living in a rooming house on Orchard Avenue in Los Angeles. At approximately 10:00 p.m., Mr. Sandoval attempted to enter his room, but when he pushed the door it would not go back all of the way. When he looked behind the door, he saw appellant. Mr. Sandoval asked appellant what he was doing in the room and backed out of the room into the kitchen. Mr. Sandoval asked appellant, who also entered the kitchen, if he had any weapons, if he was going to attack Mr. Sandoval and if he had taken anything. Appellant said no to each question. Mr. Litt, Mr. Cavanagh and Mr. Kupferman were also in the kitchen and Mr. Litt walked into the hallway to call the police. When asked what he had taken, appellant asked if the men would let him go if he gave their belongings back and pulled out a cell phone from his pocket. Mr. Cavanagh looked through appellants coat and found Mr. Sandovals lighter, binoculars and Leatherman tool. Appellant ran out the back door of the rooming house and was later apprehended.

DISCUSSION

Appellant claims imposition of an upper term violated Blakely v. Washington and his federal constitutional rights to a jury trial and due process of law. We disagree. In sentencing appellant, the court stated appellant had convinced the court there was absolutely only one way to protect society from a [sic] repeat behavior, and that is to give you the maximum that I can[.] The court selected the high term based on the nature of the offense, nature of defendants background especially the nature, recalcitrant attitude of the defendant in this case, even in light of all the evidence that has been presented. There is absolutely no remorse.[4]

In Cunningham v. California, (2007) 549 U.S. ___, ___ [127 S.Ct. 856], the United States Supreme Court concluded Californias determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and the Sixth Amendment to the United States Constitution. It also, however, reiterated that the fact of a prior conviction need not be submitted to a jury. (See Cunningham v. California, supra, 549 U.S. ___; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) 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. [Citations.] (People v. Black (2007) 41 Cal.4th 799, 818.) The prior conviction exception to the Apprendi rule has been construed broadly to apply to factors based on a defendants recidivism. (See People v. Black, supra, 41 Cal.4th 799, 819; People v. McGee (2006) 38 Cal.4th 682, 704; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.) Here, the trial courts reliance on appellants background, specifically his recidivism, permitted the upper term sentence. Use of that factor did not violate his right to a trial by jury or proof of the fact beyond a reasonable doubt.

[I]f 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. (People v. Black, supra, 41 Cal.4th at p. 813, fn. omitted.) Thus, as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black, supra, 41 Cal.4th at p. 812.) Here, as the trial court relied upon appellants recidivism, we need not consider whether reliance on the nature of the offense, the recalcitrant attitude of appellant and appellants lack of remorse was error. [T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements. (People v. Sandoval, (2007) 41Cal.4th 825, 838; see also People v. Black, supra, 41 Cal.4th at p. 813.)

Respondent asserts appellant has forfeited this claim by failing to object at trial under Apprendi, Blakelyor the right to jury trial. We disagree. At the time of the sentencing hearing in this case, February 10, 2006, the California Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238. In light of Black, it would have been futile for appellant to object on the grounds that the jury, rather than the trial court, must find aggravating facts and that those facts must be found beyond a reasonable doubt. Appellant has not forfeited his claim. (People v. Sandoval, supra, 41 Cal.4th 825, 837, fn. 4.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J. WILLHITE, J.

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[1] Appellant was found not guilty of two counts of residential burglary and the prosecution dismissed one count of possession of stolen property.

[2] The court imposed and stayed one year for each of the two prior prison terms served.

[3]Blakely v. Washington (2004) 542 U.S. 296.

[4] The prosecution argued that the high term doubled, plus the five-year prior was appropriate in view of appellants criminal record. The prosecution noted appellant had a criminal record going back to the age of 16. The probation report reflects that in January 1993, a juvenile petition was sustained for the unlawful taking or driving of a vehicle without the owners consent (Veh. Code, 10851) and evading a police officer (Veh. Code, 2800.2). In October 1993, another petition was sustained, again for taking or driving a vehicle without the owners consent (Veh. Code, 10851) and providing false identification to a peace officer (Pen. Code, 148.9, subd. (a)). In March 1995, he was convicted of second degree burglary (Pen. Code, 459) and given three years formal probation. In 1998, he was found in violation of probation, and probation was modified and extended three years. In October 1996, appellant was convicted of robbery (Pen. Code, 211) and sentenced to prison for two years. Thereafter, he violated parole. In 2001, he was convicted of burglary (Pen. Code,  459) and sentenced to prison for 32 months.