P. v. Andrus

Filed 5/2/08 P. v. Andrus 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury convicted defendant Lenard Andrus of first degree burglary. Determining that defendant had suffered a prior strike conviction and served a prior prison term, the trial court sentenced defendant to an aggregate state prison term of 17 years. Seeking to preserve certain federal claims, defendant contends that (1) his conviction should be reversed because the trial court erroneously granted his motion to represent himself at trial under Faretta v. California (1975) 422 U.S. 806 (Faretta), and (2) the trial court erred in sentencing him to the upper term sentence of six years for his offense. We affirm.

I. BACKGROUND

On March 3, 2006, at approximately 5:30 p.m., three residents of a fraternity house located near the University of California, Berkeley campus confronted defendant as he was walking out of a second floor room in the house carrying two backpacks. The room belonged to one of the residents, James Stuekerjuergen. When Stuekerjuergen noticed that one of the backpacks defendant was carrying belonged to him and attempted to grab it, defendant dropped the backpacks and tried to flee. Several fraternity members stopped defendant before he could exit the house and held him on the ground until the police arrived. Stuekerjuergens backpack was found to contain a laptop computer belonging to his roommate at the fraternity, which Stuekerjuergen had last seen on his roommates desk, as well as Stuekerjuergens textbooks and two calculators worth approximately $200. During a search incident to arrest a cell phone was located on defendant. The cell phone had been reported stolen approximately three weeks prior.

Defendant was charged by information with residential burglary (Pen. Code,[1]  459). The information alleged that defendant had three prior convictions. The first was serious, qualified as a strike, and had resulted in a prison term ( 667, subds. (a)(1) & (e)(1), 667.5, subd. (b)). The second also resulted in a prison term.

On April 18, 2007, the jury found defendant guilty of first degree burglary. The trial court later found the prior conviction allegations as to the first conviction true and struck the allegations as to the second and third convictions. On June 1, 2007, the court sentenced defendant to the aggravated term of six years in state prison, which was doubled to 12 years based on defendants strike conviction. Defendant received an additional five-year consecutive term under section 667, subdivision (a), for a total of 17 years.

This timely appeal followed.

II. DISCUSSION

Defendant contends that his conviction should be reversed because the trial court erroneously granted his motion to represent himself at trial under Faretta, supra, 422 U.S. 806. He further contends that the trial court erred in sentencing him to the upper term sentence of six years.

A. Self-representation

The trial court granted defendants motion to waive his right to counsel and represent himself. Defendant concedes that the court was compelled under Faretta to allow him to represent himself, but argues that Faretta was poorly reasoned and should be overturned by the United States Supreme Court. He states that he is raising this issue in order to preserve his right to file a petition for writ of certiorari for that purpose. Since we are bound to follow Faretta under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we must reject this ground for reversal.

B. Sentencing

The court sentenced defendant to the upper term for burglary. It applied Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which had been issued a few months before the sentencing in this case, and the recent Senate bill that passed. The latter apparently referred to the March 2007 amendments to Californias determinate sentencing law (DSL) ( 1170) that gave the trial courts broad discretion in choosing among the three terms specified by statute for an offense, subject only to the requirements that the court consider aggravating and mitigating circumstances as set out in statutes and rules, and that reasons be stated for the choice of sentence. (See People v. Sandoval (2007) 41 Cal.4th 825, 845 (Sandoval).) In selecting the aggravated sentence for first degree burglary, the court in this case note[d] that the defendants record of prior convictions as an adult are numerous, that he had served four separate prison terms, that he was on parole when he committed the offense, and that his performance on parole and probation had been unsatisfactory.

Defendant challenges his sentence on the ground that the trial court erred under Cunningham in imposing the aggravated sentence for his offense based on facts pertaining to his recidivism that had not been found true beyond a reasonable doubt by the jury.[2] Defendant recognizes that his sentence was imposed consistently with the holdings in Black and Sandoval, but argues that these cases were wrongly decided.[3]

Black held that as long as a single aggravating circumstance has been established in accordance with the requirements of Blakely, any additional factfinding by the court in selecting the appropriate sentence under the DSL will not violate the defendants right to a jury trial. (Black, supra, 41 Cal.4th at pp. 812815.) The Black court explained that under the DSL the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at p. 813.) Therefore, the court reasoned, if one such circumstance has been established in accordance with the requirements of Blakely, the upper term sentence becomes the DSLs statutory maximum sentence. (Black, at p. 813.) Further, Black held that the defendant was not entitled to a jury trial on the factual question of whether his prior convictions were numerous or of increasing seriousness. (Id. at pp. 819820.) The court held that such questions fall within the exception to the jury trial requirement for facts pertaining to prior convictions. (Ibid.) Defendant argues that Blacks interpretation of the DSL, its holding that an aggravating single factor found in conformity with the requirements of Blakely would support imposition of the upper term, and its determination of the existence of and scope of the prior conviction exception were all mistaken.

Defendant also rejects the California Supreme Courts analysis in Sandoval insofar as it required the trial courts, in light of Cunningham, to begin applying a reformed version of section 1170 consistent with the substance of the 2007 amendments to the statute. (See Sandoval, supra, 41 Cal.4th at pp. 843858.) Defendant claims that Sandoval incorrectly decided the due process and separation of powers issues raised by requiring this procedure.

As defendant recognizes, we are bound by the holdings in Black and Sandoval under Auto Equity Sales, Inc.v.Superior Court. The procedures followed by the trial court in this case, and the sentence it imposed, are consistent with the holdings of these cases. Accordingly, defendants upper term sentence was imposed in accordance with law.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

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Marchiano, P.J.

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Stein, J.

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[1] All statutory references are to the Penal Code.

[2] Defendant claims an objection was not required to preserve his Cunningham claim, citing People v. Black (2007) 41 Cal.4th 799, 810 (Black). But Black merely held that no objection was required in order to preserve a Blakely/Cunningham claim where the sentencing occurred before the sea change in the law brought about by Blakely v. Washington (2004) 542 U.S. 296. (Black, at p. 812.) Here, defendant does not rely on any case law developments occurring after his June 2007 sentencing, and in fact rejects the two cases he cites that were decided after his sentencingBlack and Sandoval. Therefore, defendant was required to object in order to preserve his Cunningham claim. However, we will exercise our discretion to consider defendants claim on its merits notwithstanding his failure to properly preserve the claim for review.

[3] Defendant advises that he is challenging his sentence in order to preserve his right to seek habeas relief in federal court.