P. v. Newman

Filed 10/25/07 P. v. Newman CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Darlene E. Schempp, Judge. Affirmed.

Jeanine G. Strong, 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, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

___________________

A jury convicted appellant Douglas Newman of unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a); count 1), evading an officer (Veh. Code, 2800.2, subd. (a); count 2), and grand theft of an automobile (Pen. Code, 487, subd. (d)(1); count 3). The trial court sentenced appellant to three years and eight months in state prison: the upper term of three years on count 1 and a consecutive mid-term of eight months on count 2. The three-year sentence on count 3 was stayed pending completion of the sentence for count 1.

On appeal, appellant argues that his sentence violates his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process because it is based on aggravating circumstances not admitted or found true by a jury, and also that the sentence was based on an improper dual use of facts. We affirm.

BACKGROUND

On February 18, 2003, Anthony Garcia parked his 1992 black Honda Prelude in his carport. The next morning, he discovered the car had been stolen.

On the evening of March 10, 2003, Los Angeles Police Officers Spencer and Lewis were on patrol in their marked police car when they observed appellant driving a black Honda Prelude with no license plates. When Officer Spencer activated his overhead lights, appellant pulled over to the curb. However, after Officer Spencer exited the police car and approached the Honda, appellant sped away. The officers pursued with overhead lights and sirens on. During the ensuing chase, appellant accelerated to 80 miles per hour on surface streets, drove northbound in a southbound lane, and nearly lost control of the car. When appellant entered the 101 freeway, the officers discontinued their pursuit because heavy traffic on the freeway would make it too dangerous.

About an hour later, California Highway Patrol Officer Powers was patrolling surface streets on his marked police motorcycle when he observed a black Honda Prelude without license plates weaving slowly from side to side. After pulling to the side of the Honda and noting that the driver, appellant, was acting somewhat confused, Officer Powers turned on his overhead lights to initiate a traffic stop. Instead of pulling over, appellant made a series of turns, drove into opposing traffic lanes, and then entered the 101 freeway. Officer Powers pursued appellant, with overhead lights and sirens activated, on the surface streets and onto the 101 freeway, which by that time had a moderate amount of traffic.

Appellant led Officer Powers on a chase that lasted about 8 to 10 minutes. On the freeway, appellant drove 80 to 90 miles per hour, tailgating and weaving around the slower moving vehicles. At one point, appellant exited the freeway by crossing over a raised curb dividing the freeway from the exit ramp, made an immediate U-turn on a surface street, and then reentered the freeway. Shortly after passing a big-rig truck by driving on the shoulder at about 90 to 100 miles per hour, appellant slowed down dramatically and exited the highway by again crossing over a raised dividing area. Officer Powers pursued appellant at high speeds down surface streets, through a 7-Eleven parking lot, and eventually into a Toys R Us parking lot. There appellant stopped the Honda and jumped out, leaving the car in drive, and ran towards a nearby apartment complex. Officer Powers did not successfully apprehend appellant on foot, but appellant was subsequently located and arrested by another police unit.

Anthony Garcia later identified the Honda driven by appellant as the one that had been stolen in February.

DISCUSSION

I.                    Imposition of upper terms based on aggravating factor of recidivism.

When a trial court imposes a sentence beyond the statutory maximum, the facts it takes into consideration in doing so must be submitted to a jury and proven beyond a reasonable doubt. (Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely).) In California, the middle term is the presumptive statutory maximum; an upper term may only be imposed if aggravating circumstances are found. (Pen. Code, 1170, subd. (b).) Relevant aggravating circumstances may be derived from a variety of sources, including case records and probation reports. (Cal. Rules of Court, rule 4.420(b).[1])

A single aggravating circumstance is enough to render a defendant eligible for an upper term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728.) The California Supreme Court concluded in People v. Black (2005) 35 Cal.4th 1238, 1261 (Black) that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence after considering aggravating circumstances does not violate Blakeley. However, Black was overruled by the United States Supreme Court, which held that Californias procedure for selecting upper terms violates a defendants Sixth and Fourteenth Amendment rights because the scheme allows a judge to impose a sentence above the statutory maximum based on facts not admitted by the defendant or found by the jury. (Cunningham v. California (2007) ___ U.S.___ [127 S.Ct. 856, 860] (Cunningham).) There is an acknowledged exception to the Cunningham rule: a defendant does not have a right to a jury trial for a sentence based on the fact of a prior conviction. (Apprendi v. New Jersey (2000) 530 U.S. 466, 488 (Apprendi); Almendarez-Torres v. United States (1998) 523 U.S. 224, 246 (Almendarez-Torres); accord, Cunningham, supra, 127 S.Ct. at pp. 860, 864, 868.) The United States Supreme Court considers recidivism a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Almendarez-Torres, supra, 523 U.S. at p. 243.)

At the time of sentencing, the trial court cited the aggravating circumstance, included amongst others, that appellant had an extremely lengthy criminal record with conduct . . . of increasing seriousness as the reason for imposing the upper terms for counts 1 and 3. Appellant contends that because the prosecution dismissed allegations of two prior felony convictions charged in the information,[2]neither the court nor a jury was required to decide the truth of those prior conviction allegations and the court could not rely on them as aggravating circumstances.[3] [N]othing in Cunningham or even in Almendarez-Torres, appellant claims, permits a sentencing court to equate any allegation of or reference to criminal history or record to a trial courts factual finding that a prior conviction is true. . . . [The] mere noting of a criminal record does not rise to the level of a finding of a prior conviction and cannot serve as the basis for imposing an upper-limit sentence. We do not agree that Cunningham and Almendarez-Torres hold that a trial court is barred from considering a defendants past criminal activity during sentencing if the allegations of that history have been dismissed during trial. Striking allegations of prior convictions does not erase those convictions from a defendants personal history. This point is emphasized in In re Varnell (2003) 30 Cal.4th 1132, 1138: When a court strikes prior felony conviction allegations . . . it  does not wipe out such prior convictions or prevent them from being considered in connection with later convictions.

Further, our conclusion that the trial courts consideration of appellants prior convictions fell within the recidivism exception is unequivocally supported by the California Supreme Courts recent decision in People v. Black (2007) 41 Cal.4th 799 (Black, II). In that case, the appellant also contended that he was entitled to a jury trial on the aggravating circumstances of a prior criminal history. The Supreme Court responded: [Appellant] . . . reads the prior conviction exception too narrowly. (See People v. McGee (2006) 38 Cal.4th 682 (McGee) [defendant not entitled to have a jury determine whether his prior conviction in Nevada qualified as a serious felony for the purpose of imposing a sentence enhancement]; see also People v. Thomas (2001) 91 Cal.App.4th 212, 220-223 [the exception recognized in Apprendi for  the fact of a prior conviction  permits a trial court to decide whether a defendant has served a prior prison term].) As we recognized in McGee, numerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. . . . (Black, II, supra, at p. 819.)

In addressing the contention that a probation report is insufficient to prove prior convictions beyond a reasonable doubt, the Black, II court pointed out that there is no binding case law that supplants the preponderance of the evidence standard applied by a trial court when it examines probation reports with the reasonable doubt standard. (Black, II, supra, 41 Cal.4th at p. 820, fn.9.)

Thus, here it was well within the trial courts discretion to consider whether appellants criminal history justified the imposition of upper term sentences. Appellants constitutional rights were not violated when this consideration was made without allowing a jury to find the evidence of appellants criminal history true beyond a reasonable doubt. Therefore, we hold that the trial court did not err in deciding that appellants criminal history was an aggravating factor that justified upper term sentences of three years for counts 1 and 3.

II. Dual use of facts.

A fact that is an element of a crime may not also be used as an aggravating factor to impose an upper sentencing term for that crime. (Cal. Rules of Court, rule 4.420(d).) Appellant contends that the trial court made an impermissible dual use of the willful and wanton disregard for safety of persons or property element of count 2 (evading an officer) to impose an aggravated sentence. As appellant failed to object on these grounds during the trials sentencing phase, and the issue does not implicate a deprivation of constitutional rights, the issue is waived on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353 [waiver doctrine applies when trial court purportedly erred because it double-counted a particular sentencing factor]; People v. Walker (1991) 54 Cal.3d 1013, 1022-23 [nonconstitutional nature of claim subjects defendants claim to rule that error is waived absent timely objection].)

Even if the issue were not waived on appeal, appellants argument would fail because the trial court cited appellants extreme danger to the community as an aggravating factor to justify upper terms only for unlawful driving or taking of a vehicle (count 1) and grand theft of an automobile (count 3). Appellant did not receive an aggravated sentence for evading an officer (count 2). Because neither count 1 nor 3 includes as an element extreme danger to the community,[4]it is clear that the trial court

did not engage in the impermissible dual use of facts in deciding to impose the upper term sentences in regards to those counts.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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[1] The rule states: In exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any further evidence introduced at the sentencing hearing.

[2] The priors alleged were a 1987 conviction for battery (Pen. Code, 243, subd. (a)) and a 1993 conviction for sale of drugs (Health & Saf. Code, 11352). There were additional convictions and more recent arrests that were not alleged in the information. At sentencing, the court decided it was not required to answer the question of whether appellant had the right to a jury trial on the alleged priors because appellant would receive a state prison sentence, not probation, for the current offenses.

[3] Appellant did not forfeit claims relating to his sentence by failing to object during the sentencing phase during trial. The forfeiture rule is not applied when an objection would have been futile. (People v. Boyette (2002) 29 Cal.4th 381, 432.) At the time of sentencing, it would have been futile for appellant to object on the grounds that the jury, not the court, must find aggravating facts beyond a reasonable doubt, because the United States Supreme Court had not yet overruled Black.

[4] The elements of unlawful driving or taking of a vehicle include (1) driving or taking a vehicle that is not ones own, (2) without the consent of the owner thereof, and (3) with intent either to permanently or temporarily deprive the owner title to or possession of the vehicle, whether with or without intent to steal the vehicle. (Veh. Code, 10851, subd. (a).)

The elements of grand theft of an automobile include (1) taking personal property from another person; (2) when the property is valued over $400; and (3) the property is an automobile. (Pen. Code, 487, subd. (a), (c), (d)(1).)