P. v. Alexander

Filed 10/10/07 P. v. Alexander 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Bradford L. Andrews, Judge. Affirmed.

Jennifer L. Peabody, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and Sonya Won, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Appellant Laroy Alexander pled guilty to forgery, was placed on probation, violated probation, and was sentenced to prison for the upper term of three years. He contends that imposition of the upper term violated his Sixth Amendment right to trial by jury, as interpreted in Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856] (Cunningham), and previous decisions of the United States Supreme Court.

We find no error in appellants sentence, based on People v. Black (2007) 41 Cal.4th 799 (Black II).

PROCEDURAL HISTORY AND FACTS

On October 18, 2004, appellant pled no contest to one count of forgery, in exchange for 365 days in county jail, three years of formal probation, and dismissal of a second forgery count.

The probation conditions included that appellant was not to use or possess narcotics, and was to avoid places where users, buyers and sellers congregate. He was advised that he could be sent to state prison if he violated his probation conditions. The plea did not specify the length of the prison term, if a violation occurred.

In addition to the two forgery counts, the information alleged five prior prison convictions, within the meaning of Penal Code section 667.5, subdivision (b) (section 667.5(b)). There were three convictions in 1994, for possession of a controlled substance (Health & Saf. Code,  11350, subd. (a)), possession for sale of marijuana (Health & Saf. Code,  11359), and driving without the owners consent (Veh. Code,  10851, subd. (a)). There also were convictions in 1996 for felony hit-and-run driving (Veh. Code,  20001, subd. (a)), and in 1999 for possession of a controlled substance (Health & Saf. Code,  11350, subd. (a)).

The prior convictions were not mentioned at the plea proceedings. The minute order for those proceedings incorrectly stated that appellant admitted two of them. That mistake has already been corrected.

On November 2, 2004, imposition of sentence was suspended, and appellant was placed on three years of formal probation.

On May 23, 2006, a probation violation hearing was scheduled, due to appellants arrest on a new crime.

The following day, the court requested a supplemental probation report. That report discussed appellants long criminal history, which included even more crimes than those named in the information.

The contested probation violation hearing occurred on June 29, 2006. A police detective testified that he saw appellant and another man, Sean Jones, standing in the driveway in front of Joness home. As the detective and his partner approached, appellant walked to a trash can and put a gallon-sized plastic baggy into it. The baggy was filled with about three ounces of marijuana. Appellant had little money on his person. He said Jones was his friend. Inside of Joness house, the police found over a pound of marijuana and an unspecified amount of rock cocaine, plus baggies, scales, handguns, gang paraphernalia, and $22,000 in cash.

An expert testified that the marijuana that appellant put into the trash can was possessed for the purpose of sale, as that amount could be made into 30 to 50 marijuana cigarettes. However, defense counsel argued against a state prison sentence, on the ground that appellant possessed only the marijuana he put into the trash can, and that relatively small quantity could have been for personal use.

The trial court had read appellants criminal history, as set forth in the probation report. It made these findings:

Based on the evidence, I find the defendant is in violation of his probation for even simple possession. Although it appears it may be possessed for sale. [] I note for the record [there is a] prior conviction for possession [for] sale of marijuana. Specifically, prior conviction for possession of cocaine base for sale.^[[1]] He has done state prison commitment on each of those. [] Most recently being the 1999 conviction thats the cocaine conviction. The defendant at the time that he was convicted on this matter was on probation or parole. He was placed on probation. Given an opportunity to comply with the terms and conditions of probation. He has failed to do that. [] I am ordering that he be committed to the Department of Correction for three years high term and one year each for [the two section 667.5(b) convictions] that he admitted at the time of the plea in this matter[,] for a total of five years . . . .

On March 5, 2007, the trial court granted appellants motion to correct his sentence, and struck one year each for the two prison priors, since appellant had not admitted them at the time of the plea.

DISCUSSION

Following revocation, appellant was sentenced to the upper term for forgery, based on his two prior drug convictions and his failure on probation or parole.

Appellant argues that under the terms of the plea agreement, the maximum sentence that could be imposed was the midterm of two years. That contention lacks merit, since the plea did not specify the length of the prison term.

Respondent argues that the Cunningham issue was forfeited because no such objection was raised below. That argument was rejected in Black II, supra, 41 Cal.4th at pages 810-812.

Respondent also maintains that appellant cannot raise this issue because he did not obtain a certificate of probable cause. That contention lacks merit, since a certificate of probable cause is not necessary for an issue that concerns the penalty imposed at a postplea proceeding. (People v. Young (2000) 77 Cal.App.4th 827, 831; see Cal. Rules of Court, rule 8.304(b)(4)(B); 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal,  16, p. 253.)

We realize that in People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448, the Third District held that the defendant was foreclosed from arguing that his upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296, because he had not obtained a certificate of probable cause, and his sentence did not exceed the maximum term specified at the time of the plea. Assuming arguendo that Bobbit remains valid after the nonforfeiture holding of Black II, supra, 41 Cal.4th at pages 810-812, Bobbit is distinguishable, as appellant did not agree to a maximum possible term at the time he pleaded guilty.

Respondent also argues that appellant waived his right to a jury trial on aggravating factors by pleading no contest. We reject that contention, as there is no indication that appellant stipulate[d] to the relevant facts or consent[ed] to judicial factfinding of the aggravating factors, at the time of the plea. (Blakely v. Washington, supra, 542 U.S. at p. 310.)

Although appellants issue is cognizable on appeal, it lacks merit.

Subsequent to the sentencing hearing, the trial court properly struck the enhancements for the prior convictions, since appellant did not admit the allegations for them at the time he pleaded guilty. Although the prior convictions could not be used as separate enhancements, the probation report showed that appellant had a long record of prior felony convictions, prison terms, and failures on probation and parole. That criminal history could be used for the purpose of the upper term under Black II, supra, 41 Cal.4th 799.

As Black II interpreted Cunningham, supra, 127 S.Ct. 856, imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816) Under Black II, the trial court properly used appellants past drug convictions and his failure on probation or parole, as grounds for the upper term.

Appellant argues that the recidivism exception of Almendarez-Torresv.UnitedStates (1998) 523 U.S. 224 does not permit findings that involve more than the fact of a prior conviction. Black II, supra, 41 Cal.4th at pages 819-820 rejected that very argument. As Black II interpreted Cunningham, only one valid aggravating factor is necessary, and a defendants prior criminal history is a valid aggravating factor. We must follow the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, imposition of the upper term here complied with appellants Sixth Amendment right to trial by jury.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

^[1] There is a slight discrepancy between the probation report and the trial courts words, regarding the offense that appellant committed in 1999. He was arrested for possession of cocaine base for sale (count 1) and possession of a controlled substance (count 2), but he was convicted and sent to prison solely on count 2. The fact the 1999 conviction was for possession rather than possession for sale can have made no difference.