P. v. Banks

Filed 11/16/07 P. v. Banks CA4/3

Opinion following remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed.

William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, Robert M. Foster, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant William Adam Banks appeals from a judgment sentencing him to six years in prison. His sole claim is that the upper term sentence the trial court imposed on count 1 violated his constitutional rights because it relied on aggravating factors that were not proven to a jury beyond a reasonable doubt. In an opinion issued April 13, 2007, we held the courts reliance on defendants prior convictions and his unsatisfactory performance on probation and parole could support its choice of the upper term, but reversed the sentence and remanded the matter for a new sentencing hearing on whether, in the exercise of its discretion, the trial court believed this factor alone supported imposing an upper term.

The California Supreme Court granted a petition for review and subsequently transferred the matter back to us with directions to vacate our original decision and reconsider the case in light of its recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. We issued an order vacating our original decision and granted the parties additional time to file supplemental briefs. Having received and considered the supplemental briefs, we now affirm the judgment.

FACTS

Defendant and two other men entered a sandwich shop displaying what appeared to be a gun. After taking money from the till, a tip jar, and one of the stores two employees, defendant and his confederates forced their victims into a refrigerator. Based on this evidence, a jury found defendant guilty of two counts of second degree robbery, one count of commercial burglary, and two counts of false imprisonment by violence.

The trial court sentenced defendant to six years in prison, consisting of the five-year upper term for the first robbery and a consecutive one-year term on the second. It stayed sentencing on the burglary count (Pen. Code,  654) and imposed concurrent two-year terms on the false imprisonment with violence counts. In choosing the upper term on count 1, the court cited defendants leadership role in the undertaking, which involved some planning and sophistication, a high degree of cruelty, his use of at least [the] replica of a gun, plus defendants well documented priors and the fact he ha[d] not been doing well on probation or parole.

DISCUSSION

In Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], the trial court enhanced the prison sentence imposed on a defendant who pleaded guilty to a firearm possession offense after finding, by a preponderance of the evidence, that the crime had been motivated by racial bias. The United States Supreme Court held the increased sentence violated the defendants rights under the Sixth Amendment because, [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.)

Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] applied the Apprendi rule to invalidate a prison term exceeding the maximum 53-month standard range allowed under the states determinate sentencing law based on the trial judges finding the defendant committed the offense with deliberate cruelty. Our precedents make clear . . . that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Id. at pp. 303-304.)

Although in People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court upheld this states pre-March 30, 2007 Determinate Sentencing Law (DSL) against an Apprendi/Blakely challenge, in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], the United States Supreme Court disagreed. Contrary to . . . Black . . ., our decisions . . . point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Id. at p. ___ [127 S.Ct. at p. 871], fn. omitted.) The United States Supreme Court also granted a petition for writ of certiorari in Black, vacated that decision, and remanded the matter to the California Supreme Court for reconsideration in light of the Cunningham decision. (Black II, supra, 41 Cal.4th at p. 808.)

In Black II, the California Supreme Court again upheld the trial courts imposition of an upper term sentence. First, the court concluded that, under the DSL as it read before March 30, 2007, since the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term (Black II, supra, 41 Cal.4th at p. 813; see also People v. Osband (1996) 13 Cal.4th 622, 728), so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, 41 Cal.4th at p. 813.)

Second, citing the jurys finding [the] defendant committed the

offense . . . by means of force, violence, duress, menace, and fear of immediate and unlawful bodily injury[] (Black II, supra, 41 Cal.4th at p. 816), and the trial courts conclusion the defendants prior convictions . . . are numerous or of increasing seriousness (id. at p. 818), the court held two aggravating circumstances had been established by means that satisfy the requirements of the Sixth Amendment, thereby exposing him to the upper term as the statutory maximum sentence . . . . (Id. at p. 816, fn. omitted.)

As for the defendants criminal history (Black II, supra, 41 Cal.4th at p. 818), the second factor rendering him eligible for an upper term sentence, the court reaffirmed its holding in People v. McGee (2006) 38 Cal.4th 682 that Apprendis prior conviction exception include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.] (Black II, supra, 41 Cal.4th at p. 819, fn. omitted.) This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.] (Id. at p. 820, fn. omitted.)

Applying these principles to the present case, we conclude the trial court did not violate defendants constitutional rights when it sentenced him to the upper term on count 1. Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in Californias current determinate sentencing scheme: First, to raise the maximum permissible sentence from the middle term to the upper term; and second, to serve as a consideration in the trial courts exercise of its discretion in selecting the appropriate term from among those authorized for the defendants offense. (Black II, supra, 41 Cal.4th at pp. 815-816.) Thus, where a single aggravating circumstance . . . render[ing] a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, 41 Cal.4th at p. 812.)

One of the circumstances cited by the trial court for imposing the upper term was defendants well documented prior convictions and his unsatisfactory performance on probation and parole. (Cal. Rules of Court, rule 4.421(b)(2) & (5).) As in Black II, the nature and existence of defendants prior convictions and his lack of success during earlier rehabilitation attempts are the type of matters typically and appropriately undertaken by a court (Black II, supra, 41 Cal.4th at p. 820), because they can be easily determined by examining the records of defendants criminal history. (Id. at p. 819.)

Defendant argues Black IIs holding that a persons criminal history can render him or her eligible for an upper term sentence was wrongly decided and must not be followed because it is inconsistent with the United States Supreme Courts bright line rule . . . in Apprendi . . . . In light of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Supreme Court decisions . . . are binding upon and must be followed by all the state courts of California], this argument lacks merit.

While defendants prior criminal history rendered him eligible for an upper term sentence, standing alone it might not necessarily mandate the imposition of that term. In People v. Sandoval, supra, 41 Cal.4th 825, the California Supreme Court reiterated that a trial courts sentencing decision [is] subject to review for abuse of discretion, and its discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an individualized consideration of the offense, the offender, and the public interest. [Citation.] (Id. at p. 847.) Thus, a trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.] A failure to exercise discretion also may constitute an abuse of discretion. [Citations.] (Id. at pp. 847-848.)

Here, in addition to defendants prior criminal history, the trial court cited his leadership role in committing the crimes, plus its conclusion the offenses involved planning and sophistication, and a high degree of cruelty. These are relevant sentencing factors (Cal. Rules of Court, rule 4.421(a)(1), (4) & (8)) and, except for his Sixth Amendment claim, defendant does not question the trial courts reliance on them to support its decision. Thus, we conclude defendant is both eligible for an upper term sentence and the trial court did not abuse its discretion by imposing that term in this case.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.