P. v. Cruz

Filed 10/5/07 P. v. Cruz CA4/1

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed.

A jury convicted Victor Manuel Cruz of assault with a deadly weapon (Pen. Code,^[1] 245, subd. (a)(1)), battery with serious bodily injury ( 243, subd. (d)), giving false information to a peace officer ( 148.9, subd. (a)), and threatening a witness ( 140). The jury also found appellant suffered four prior felony convictions and served two prison prior terms. The trial court sentenced appellant to a total of 19 years in state prison. On appeal appellant argues the sentence imposed by the trial court for counts 1

and 2 was based on facts not found true by the jury beyond reasonable doubt, which violated appellant's constitutional rights guaranteed by the Fifth, Sixth and Fourteenth Amendments.

FACTS

A. Prosecution Case

In May 2005 Eduardo Gonzalez agreed to accompany appellant to a store to buy cigarettes. After stopping at the store, appellant drove to Fiesta Island and parked his brown van. Appellant got out and used the restroom. When appellant returned to the van, he tried to punch Gonzalez. Appellant then tried to stab Gonzalez with a knife. A second van arrived with five or seven people who attacked Gonzalez with bats and knives. Appellant and the men from the other van hit Gonzalez about five or six times with a bat. He was also hit on the head with either a screwdriver or a knife. Gonzalez was eventually able to get out of the van. Appellant chased Gonzalez and punched him twice. Gonzalez ran and was chased by appellant and the other attackers. Appellant caught Gonzalez and tried to stab him in the neck with a knife. Gonzalez ran towards people on the beach and his attackers departed. Gonzalez was transported to the hospital, where he received five staples for the wound on the back of his head.

Officers Edward Nugent and Marlon Estepa responded to a radio dispatch to Fiesta Island, which described the suspect's car as a brown van. Nugent and Estepa conducted a traffic stop on appellant's van. Appellant identified himself as Manuel Cole. Nugent found no driver's license or criminal information for that name. Appellant was arrested for driving without a license. Nugent found a man's shirt with a fresh blood stain balled up and placed under the driver's seat. The DNA from the blood on the shirt matched Gonzalez's DNA.

Around June 15 Gonzalez was arrested on an unrelated matter and placed in a holding cell along with appellant and some other inmates. Appellant called Gonzalez a "rata," which is Spanish for snitch or rat. Then appellant and two other inmates started punching Gonzalez.

B. Defense Case

During trial the defense claimed appellant tried to help Gonzalez during the attack. Gonzalez testified that when the other van arrived, appellant was coming out of the bathroom. Deputy Juan Villa testified that he only saw Mario Madrid strike Gonzalez in the holding cell but that Gonzalez blamed his injuries on appellant.

DISCUSSION

I

Appellant argues the trial court's imposition of an aggravated term based on facts not found true by the jury beyond a reasonable doubt violated his constitutional rights guaranteed by the Fifth, Sixth and Fourteenth Amendments. Appellant also argues the error was not harmless beyond a reasonable doubt.

The People contend appellant forfeited or waived any Sixth Amendment error by failing to object on that ground at the sentencing hearing. We disagree. The forfeiture rule does not apply when an objection would have been futile. (People v. Esquibel (2006) 143 Cal.App.4th 645, 660; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.) At the time of appellant's sentencing hearing, the imposition of the aggravated term was governed by People v. Black (2005) 35 Cal.4th 1238. Black held "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive term under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Id. at p. 1244.) In light of Black, any Sixth Amendment objection would have been futile. Thus, appellant has not forfeited or waived his claim that the sentencing procedure violated the Sixth Amendment.

Turning to appellant's substantive argument, we note the trial court sentenced appellant to a total of nineteen years in state prison, which included the upper term of eight years for count 1 and an upper term of eight years for count 2, stayed pursuant to section 654. The court imposed the upper term based on six factors: (1) the victim was particularly vulnerable; (2) appellant induced others to participate in the attack; (3) appellant engaged in violent conduct which indicates he is a serious danger to society; (4) appellant's prior convictions are numerous and they are increasing in seriousness; (5) he was on parole at the time of the offense; and (6) his prior performance on probation or parole was unsatisfactory. The court also found there were no factors in mitigation, and thus, the aggravating factors merited imposing the upper term.

In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) the United States Supreme Court held California's determinate sentencing law authorizing a judge to find facts by a preponderance of the evidence in imposing an upper term sentence violated a defendant's right to a trial by jury under the Sixth and Fourteenth Amendments. "Other than a prior conviction, see Almendarez-Torres v. United States 523 U.S. 224, 239-247 . . . (1998), we held in Apprendi, '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.' [Citation.]" (Id. at p. ___ [127 S.Ct. at p. 864].) The recidivist exception is not limited to the mere existence of prior convictions. Courts in California and other jurisdictions have held the prior conviction exception is not limited simply to the bare fact of a defendant's prior conviction (People v. McGee (2006) 38 Cal.4th 862, 704), but applies to matters involving the more broadly framed issue of " 'recidivism.' " (People v. Thomas (2001) 91 Cal.App.4th 212, 221; U. S. v. Cordero (5th Cir. 2006) 465 F.3d 626. 632-633; U. S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820; U. S. v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142.)

In People v. Tu (Aug. 27, 2007, A105905) ___ Cal.App.4th ___ [2007 D.A.R. 13131] the court stated: "Our Supreme Court just handed down its opinion in Black II [People v. Black (2007) 41 Cal.4th 799], on remand from the United States Supreme Court for reconsideration in light of Cunningham. There, the court held 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. . . . [] . . . Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, 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." ' [Citation.] Thus, the issue in each case, including the present case, 'is whether the trial court's factfinding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.' [Citation.] Concluding, the  Black court stated: '[I]mposition of the upper term does not infringe upon the defendant's 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 defendant's record of prior convictions.' [Citation.]" (Id. at p. ___ [2007 D.A.R. at p. 13133].)

In this case it was found true by the jury that appellant suffered four prior felony convictions. That being the case, the trial court properly used the fact of appellant's recidivism along with other relevant factors as factors supporting imposition of the upper term.

II

Appellant also argues the constitutional right to jury trial extends to the issue of the identity of the person who suffered the alleged prior convictions. Other courts have addressed the issue of identity in relation to prior convictions. The courts have held a defendant has no constitutional right to a jury trial on the issue of his identity as the person convicted of prior crimes. (People v. Belmares (2003) 106 Cal.App.4th 19, 26-28; People v. Garcia (2003) 107 Cal.App.4th 1159, 1164-1165.) Section 1025, subdivision (c), states "the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury." Therefore, Cunningham does not extend to the issue of identity in prior convictions.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

McDONALD, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

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