P. v. Jones
Filed 9/5/08 P. v. Jones CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. GERALD J. JONES, Defendant and Appellant. | E043726 (Super.Ct.No. FWV038264) OPINION |
APPEAL from the Superior Court of San Bernardino County. Raymond P. VanStockum, Judge. Affirmed.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Gerald Jones guilty of grand theft by embezzlement. (Pen. Code,[1] 487, subd. (a), count 1.) Defendant admitted that he had one prior strike conviction ( 1170.12, subds. (a)(d) and 667, subds. (b)(i)) and one prison prior ( 667.5, subd. (b)). On July 24, 2007, the court sentenced defendant to a total state prison term of seven years, which consisted of the upper term of three years on count 1, doubled because of the strike prior, plus a consecutive year for the prison prior.
On appeal, defendant argues that the imposition of the upper term violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham), Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), and Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely). Defendant acknowledges that current case law does not support his argument, but he raises the issue to preserve it for federal court review. We affirm.
FACTUAL BACKGROUND
Defendant worked as a cashier in a store. The stores surveillance cameras captured him stealing approximately $1500 from the business over the course of a few days while he was working.
ANALYSIS
The Trial Court Properly Imposed the Upper Term
Defendant argues that the imposition of the upper term violated his Sixth Amendment right to a jury trial under Cunningham. We disagree.
A. The Sentencing Hearing
At the sentencing hearing on July 24, 2007, the court imposed the upper term of three years on the grand theft conviction. The court explained that it based its selection on the reasons listed in the probation report. The aggravating factors listed in the probation report included that the manner in which the crime was carried out indicated planning, sophistication or professionalism; defendant took advantage of a position of trust or confidence to commit the offense; his prior convictions were numerous and increasing in seriousness; he was on parole when the crime was committed; and his prior performance on parole was unsatisfactory. There were no mitigating factors.
B. The Court Properly Imposed the Upper Term
Defendants have a constitutional right to have the jury, not the trial judge, decide all facts increasing the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301.) Cunningham held that Californias determinate sentencing law violates the Sixth Amendment to the United States Constitution because it authorizes the judge, not the jury, to find the facts permitting an upper term sentence . . . . [Citation] As the Supreme Court explained, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citation.] [] The prior conviction exception referred to in Cunningham derives from the Supreme Courts opinions in [Apprendi], [Blakely] and Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L. Ed. 2d 350, 118 S.Ct. 1219]. Courts in California and in other jurisdictions have construed Apprendi, as requiring a jury trial except as to matters relating to recidivism. [Citation.] (People v. Yim (2007) 152 Cal.App.4th 366, 370 (Yim).) This exception for recidivism is not limited to the fact of a defendants prior conviction, but includes the defendants status as a probationer or parolee at the time the current offense was committed and the existence of numerous or increasingly serious prior convictions. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1514.)
The California Supreme Court recently decided People v. Black (2007) 41 Cal.4th 799 (Black II). There, the court held that 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. (Id. at p. 813, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black II, supra, at pp. 819-820.)
The trial court here found that defendants prior convictions were numerous and increasing in seriousness, he was on parole at the time of the current crime, and his prior performance on parole was unsatisfactory. These factors were all related to recidivism. (Velasquez, supra, 152 Cal.App.4th at p. 1514; Yim, supra, 152 Cal.App.4th at p. 371.) Since these factors fall within the Apprendi exception to the jury trial right, the court did not violate defendants Sixth Amendment rights by imposing the upper term without these findings by a jury. (Yim, supra, 152 at p. 371.) Furthermore, under these circumstances, the court was permitted to rely on the other factors, including that defendant took advantage of a position of trust or confidence, and he demonstrated sophistication and professionalism, in imposing the upper term. (Black II, supra, 41 Cal.4th at pp. 819-820.)
Assuming arguendo that the court somehow erred in relying upon these factors to justify the upper term, we find any error harmless. In People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval), our Supreme Court held that violations of a defendants right to a jury trial on aggravating circumstances are subject to the harmless error analysis as set forth in Chapman v. California (1967) 386 U.S. 18, 23 (Chapman). Pursuant to Chapman and Sandoval, we may find an error harmless if we conclude the jury applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . . (Sandoval, supra, at p. 839.)
We conclude the jury undoubtedly would have found one or more of the aggravating factors true beyond a reasonable doubt, thereby authorizing imposition of the upper term. One element of grand theft by embezzlement is that the owner entrusted his property to the defendant and the defendant converted that property for his own benefit. Since the jury found defendant guilty of embezzlement, it undoubtedly would have found true the aggravating factor that defendant took advantage of a position of trust or confidence to commit the offense. Therefore, any constitutional violation in imposing the upper term was harmless beyond a reasonable doubt.
Defendant argues that the court in Black II erred in holding that a finding that a defendants convictions are numerous or of increasing seriousness falls within the exception for a prior conviction. He also contends that Black II wrongly decided that the upper term becomes the statutory maximum upon the existence of a single aggravating factor. In addition, defendant claims Sandovals harmless error test is inconsistent with federal constitutional law. As defendant acknowledges, we are bound by the Black II and Sandoval decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
GAUT
J.
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[1] All further statutory references will be to the Penal Code unless otherwise noted.
