P. v. Davie
Filed 11/1/07 P. v. Davie CA2/4
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. TODD VINCENT DAVIE, Defendant and Appellant. | B173037 (Los Angeles County Super. Ct. No. VA074008) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Larry S. Knupp, Judge. Affirmed.
Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Victoria B. Wilson and John Yang, Deputy Attorneys General for Plaintiff and Respondent.
______________________________
Defendant Todd Davie challenges the trial courts selection of the upper term sentence, claiming that it violated his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296. In our original opinion, we affirmed the trial court on the basis of our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), that upper term sentencing on the basis of factors found true by the trial court, rather than a jury, did not violate the rule of Blakely and other high court decisions. Subsequently, the United States Supreme Court granted certiorari to review our decision, and later remanded the case to this court. It did so for reconsideration in light of the decision in Cunningham v. California (2007) 549 ___ U.S. ___ [127 S.Ct. 856, 871], which rejected the rationale of Black I. While the case was pending in this court following remand, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. These cases further define the validity of upper term sentencing under the determinate sentencing law. We invited the parties to submit letter briefs on the application of these 2007 decisions to the present appeal. They have done so, and we have considered their responses.[1]
Based on Black II, we conclude that the upper term sentence imposed does not violate constitutional principles.
FACTUAL AND PROCEDURAL SUMMARY
In November 2003, appellant was a psychiatric patient at Metropolitan State Hospital in Norwalk. On the morning of November 19, as Dr. Moheb Beshay walked down the hospital hall, appellant jumped out from the bathroom and hit Dr. Beshay in the cheek. Appellant punched the doctor in the face and body and threw him to the floor. Dr. Beshay lost consciousness for a moment, then became aware that appellant was on top of him, repeatedly hitting him. As appellant was pulled away by hospital staff, he was heard threatening to kill the doctor: You get me medication and distress my body and Im going to kill you for that.
Appellant was charged in count one with assault by means likely to produce great bodily injury, with an allegation that he personally inflicted great bodily injury, and in count two with making criminal threats. It also was alleged that appellant served a prior prison term. Appellant initially plead not guilty, then changed his plea to not guilty by reason of insanity. A jury found appellant guilty on both counts, but found the great bodily injury allegation was not true. Appellant waived the right to jury trial on the insanity issue and the prior prison term allegation. The court found that he was not insane at the time of the crime, and found the prior prison term allegation true.
The court sentenced appellant to the upper term of four years on count one, with a one year enhancement for the prior prison term. The court imposed a concurrent midterm of two years on count two. Appellant filed this timely appeal.
DISCUSSION
The trial courts stated reasons for imposition of the upper term were that the crime involved premeditation and planning, defendants prior convictions as an adult were numerous and of increasing seriousness, he served a prior prison term, and he was dangerous to society. Of these, the second and third factors are recidivist and fall within the recidivism exception to the rule that a defendant is entitled to have a jury decide sentencing factors, under the beyond a reasonable doubt standard if a greater sentence is dependent upon such factors. (Black II, supra, 41 Cal.4th at p. 818.) The other two factorspremeditation and planning, and danger to societyare not recidivist. Black II holds that if any factor within the recidivist exception is found by the trial court, the defendant is eligible for upper term sentencing, and the trial court may consider all pertinent factors, including nonrecidivist factors, in determining whether to impose the upper term. That describes this case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P.J.
We concur:
WILLHITE, J.
MANELLA, J.
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[1] Factual and Procedural Summary portion of our original opinion is repeated here. The Discussion portion is new.
