P. v. Rankin

Filed 10/26/07 P. v. Rankin CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This case raises a sentencing issue arising from a large-scale conspiracy to cash counterfeit checks.

A jury convicted defendant Sonya Deniece Rankin of two counts of conspiracy (Pen. Code,  182, subd. (a)(1));[1] 10 counts of grand theft ( 487, subd. (a)); and one count of possession of stolen property ( 496). The jury found that the loss was over $150,000 within the meaning of section 12022.6, subdivisions (a)(2) and (b), and over $100,000 within the meaning of section 1203.045, subdivision (a). The jury further found that the crimes involved a pattern of fraudulent conduct and a taking of over $500,000 ( 186.11, subds. (a)(1), (2)), and that defendant was out on bail when she committed four of the crimes ( 12022.1).

Defendant was sentenced to the upper term on one count of grand theft, count 5, and to consecutive sentences of eight months on all but one of the remaining counts of grand theft and on the count of possession of stolen property. The trial court stayed the sentences on the conspiracy counts pursuant to section 654. With enhancements, defendants total sentence is fourteen years eight months.

In imposing the upper term on count 5, the trial court relied on nine aggravating factors: five found by the jury and four found by the court. The jury found that (1) defendant induced others to participate in the crime or occupied a position of leadership or dominance; (2) the manner in which the crime was carried out indicated planning, sophistication, or professionalism; (3) the crime involved a substantial loss of money; (4) the crime involved a large quantity of contraband; and (5) the crime involved an abuse of trust. The court found that (6) defendant had suborned perjury; (7) defendants prior convictions were of increasing seriousness; (8) defendant was on probation at the time of the offense; and (9) defendants prior performance on probation was poor.

The appellants opening brief and the respondents brief were filed before July 19, 2007, when the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In her reply brief, defendant concedes that Black II rejects her two contentions on appeal, and that we are bound by Black II.

1. Defendant contends that her upper term was imposed in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). But the upper term was justified by an aggravating factor based on recidivism, which falls outside the constitutional requirements of these two cases.

In Black II, the court held: Under Californias 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.  (Black II, supra, 41 Cal.4th at p. 813.)

In other words, if there is a single aggravating circumstance which satisfies Blakely, 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 [a] jury trial. (Black II, supra, 41 Cal.4th at p. 812.)

The Black II court further held, consistent with existing authorities, that a defendants criminal historyincluding the increasing seriousness of her prior convictionsqualifies under the recidivism exception to Blakely. (Black II, supra, 41 Cal.4th at pp. 818-820.)

Thus, the aggravating factor based on the increasing seriousness of defendants prior convictions was properly found by the court and, under Black II, is sufficient to justify the upper term.

2. Defendant also contends that her consecutive sentences were imposed in violation of Cunningham. But Black II makes it clear that Cunningham does not apply to consecutive sentencing. (Black II, supra, 41 Cal.4th at pp. 820-823.)

Defendants upper term and consecutive sentences are appropriate. Defendants argument that Sandoval invalidates jury-determined aggravating circumstances is moot.

The judgment and sentence are affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

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[1] Subsequent statutory citations are to the Penal Code.