P. v. Smith

Filed 8/31/06 P. v. Smith CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Lonnie Mack Smith brings this appeal challenging the sentence imposed in order to preserve his rights to further federal review.

BACKGROUND

On July 3, 2003, defendant was charged with sale of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1), and sale of a substance falsely represented to be cocaine base (Health & Saf. Code, § 11355; count 2). A prior strike conviction for robbery was alleged. (Pen. Code, §§ 667, subds. (b) -- (i), 1170.12.) These charges arose out of an encounter on February 7, 2003, when defendant sold an object purported to be crack cocaine to an undercover San Jose police officer. Analysis of the substance showed it was not a controlled substance.

Defendant pleaded no contest to count 2 and admitted the strike. The trial court dismissed count 1.[1]

At sentencing on February 10, 2004, the trial court struck the strike and sentenced defendant to the upper term of three years in prison, with the upper term based on defendant’s lengthy criminal record. The court then suspended execution of sentence and placed defendant on probation, staying a one-year county jail term and ordering defendant to complete the Victory Outreach drug rehabilitation program. On July 2, 2004, defendant was terminated from the Victory Outreach program for “not complying with the rules set by the program.” On January 4, 2005, the trial court issued a bench warrant and revoked defendant’s probation. Defendant was then arrested on March 17, 2005, in San Francisco County.[2]

On October 7, 2005, defendant admitted violating probation. The trial court ordered execution of the previously suspended sentence of three years in prison. Defendant was awarded 600 days custody credit. Defendant timely filed a notice of appeal on November 15, 2005.

DISCUSSION

On appeal, defendant contends that his sentence must be reversed because the aggravating factor used as a basis to impose the upper term was not determined by a jury as required, in his view, by the rationale of Blakely v. Washington (2004) 542 U.S. 296 (Blakely). The United States Supreme Court concluded in Blakely that a defendant in a criminal case is entitled to a jury trial on any fact that increases the maximum sentence to which the defendant is exposed for a particular offense, unless that fact has been admitted by the defendant or is based on the defendant’s prior convictions. (Id. at p. 303.) Then, in People v. Black (2005) 35 Cal.4th 1238 (Black), the California Supreme Court confronted the impact of Blakely on the California determinate sentencing law and held that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) The court explained that “in operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker.” (Black, supra, at p. 1254.)

In the recent case of People v. Jordan (2006) 141 Cal.App.4th 309, this district upheld the imposition of an upper term in the face of a Blakely challenge. There, the trial court imposed the upper term after finding seven factors in aggravation and only one in mitigation. We concluded that under the authority of Black, the trial court exercised its discretion in a reasonable manner and validly imposed an upper term.

Defendant acknowledges that under the authority of Black his claim fails, but he states that he presents the issue “to exhaust state remedies and preserve his right to federal review of his sentence. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Cal. Rules of Court, [r]ule 33.3.)” And, as defendant points out, the identical question to that determined in Black is now pending before the United States Supreme Court in Cunningham v. California, certiorari granted February 21, 2006, No. 05-6551, ___ U.S. ___ [126 S.Ct. 1329].

We conclude that under the extant authority of Black, the trial court’s imposition of the upper term sentence does not violate defendant’s right to a jury trial under the Sixth Amendment. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)

In addition, as the Attorney General notes, defendant faces a further hurdle in now challenging for the first time a sentence that was imposed, but execution suspended, in 2004 when probation was granted. In general, “[w]hen a trial court revokes probation in a case in which sentence was imposed but execution of that sentence was suspended in preparation for a grant of a term of probation, the trial court after revocation of probation has no authority to reduce the imposed sentence that it then executes. (People v. Howard (1997) 16 Cal.4th 1081, 1084.)” (People v. Price (2004) 120 Cal.App.4th 224, 244.)

Although defendant acknowledges this general principle in his brief, he insists that his sentence differs in that it was an unauthorized sentence because his due process right to notice was violated when the prosecutor failed to allege facts supporting the upper term in the complaint. He explains that an unauthorized sentence may be challenged when it takes effect. (See People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7.) As the Price court noted, “an illegal sentence may be corrected whenever the error comes to the attention of the trial court or any reviewing court. [Citations.]” (People v. Price, supra, 120 Cal.App.4th at p. 244.)

However, in People v. Amons (2005) 125 Cal.App.4th 855, a case with similar circumstances to those present here, the First District concluded that any new sentencing rules announced in Blakely “do not apply retroactively upon revocation of defendant’s probation to a final sentence that was previously imposed but suspended during his probationary period.” (Id. at p. 860.) In Amons, the defendant was sentenced to a four-year upper term (plus a three-year term for an enhancement) based upon aggravating circumstances which related to the offense of assault and the defendant’s recidivism. Execution of the sentence was suspended, and after numerous probation violations, probation was revoked and the previously imposed sentenced was ordered into execution. After carefully reviewing the relevant Supreme Court cases, the Amons court found no reason to apply Blakely principles retroactively and concluded those principles apply “only to cases not yet final when the opinion was issued.” (Id. at p. 868.) Thus, “[d]efendant’s belated complaint with his imposed but suspended four-year upper term sentence is not cognizable in this appeal. [Citations.] And the principles of Blakely cannot retroactively invalidate the sentence imposed upon defendant by a final judgment.” (Id. at pp. 869-870; see also In re Consiglio (2005) 128 Cal.App.4th 511 [same].) Although defendant maintains that his particular challenge, i.e., an unauthorized sentence, was not raised in Amons, we are in agreement with that court’s conclusion. Moreover, we do not accept defendant’s characterization of his sentence as unauthorized given our Supreme Court’s conclusion in Black.

Finally, we note that in the present case, the trial court imposed the upper term based on defendant’s lengthy criminal record, including a prior strike conviction, which defendant admitted and the court then struck. Both Apprendi and Blakely specifically exclude from their jury trial prescriptions the fact of a prior conviction or any fact admitted by the defendant. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Blakely, supra, 542 U.S. at p. 303.)

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Mihara, Acting, P.J.

McAdams, J.

Publication Courtesy of San Diego County Legal Resource Directory.

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

[1] The trial court denied defendant’s motion to reduce count 2 to a misdemeanor.

[2] According to the record, defendant failed to report to probation within 10 days of his review hearing, failed to provide a current address, failed to provide proof of updated registration pursuant to Health and Safety Code section 11590, failed to make himself available for a search and drug test, failed to provide proof of completion of a substance abuse program, failed to make restitution payments, and failed to request a travel permit when traveling outside Santa Clara County.