P. v. Bejarano

Filed 9/12/07 P. v. Bejarano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. Affirmed.

Richard Schwartzberg, 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, Senior Assistant Attorney General, and David Delgado-Rucci and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of felony evading of a police officer (count 1Veh. Code,  2800.2, subd. (a)) and misdemeanor driving under the influence (count 2Veh. Code,  23152, subd. (a)). After a bifurcated trial, the jury additionally found true defendant had suffered three prior prison terms. (Pen. Code,  667.5, subd. (b).)^[1] The court sentenced defendant to the upper term of three years on count 1, time served on count 2, and consecutive one-year terms for each of the three prior prison terms, for an aggregate term of six years. On appeal, defendant contends the trial court violated his Sixth Amendment (U.S. Const., 6th Amend.) right, via the Fourteenth Amendment (U.S. Const., 14th Amend.), to a jury trial finding on those factors it used in justifying imposition of the upper term. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).) The People counter that the recidivist exception permitted the trial court to impose the upper term, without a jury finding, based on defendants prior convictions. Defendant replies that the dual use prohibition of section 1170, subdivision (b) barred the trial court from using defendants three prior felony convictions to impose the upper term on count 1, because defendants sentence had already been enhanced based on those crimes. To the extent that the trial court imposed the upper term based on the defendants three prior convictions, which were the substance of his section 667.5, subdivision (b) enhancements, we agree that it erred. Nonetheless, we find the error harmless beyond a reasonable doubt due to defendants extensive, additional prior convictions which were not used as enhancements in this case.

I. FACTUAL AND PROCEDURAL BACKGOUND

A citizen flagged down Deputy Charles Elder while he was on patrol and informed him of a possible instance of drunk driving. The citizen told the deputy the driver had weaved back and forth across the road, described the vehicle, and informed him of the direction in which it was traveling. The deputy drove off in that direction and noted defendant, in a vehicle matching the citizens description, drive through a stop sign without stopping. He then activated his emergency lights and attempted to initiate a traffic stop. The vehicle turned left onto another street and the deputy turned on his siren. The vehicle accelerated away from the deputy. The deputy engaged defendant in a chase in which the defendant made numerous turns onto various streets, ran several stop signs, and exceeded the posted speed limit. Defendant finally turned off his lights, turned into an apartment complex, which was later determined to be where he lived, parked, and laid down on the front seat of his car.

Defendant exited the vehicle and asked the deputy why he was following him. Defendant was unsteady and speaking with a slur. The deputy and another officer took defendant into custody. When the deputy placed defendant in his patrol vehicle, he noted the smell of alcohol on his breath. A blood test conducted at the station revealed defendant had a blood alcohol level of 0.19 percent.

II. DISCUSSION

Defendant claims the trial court erred in imposing the upper term on count 1 and that the matter must be remanded for resentencing in light of the United States Supreme Courts recent decision in Cunningham (imposition of upper term sentence based on facts found by judge under Californias determinate sentencing law (DSL) violates Sixth and Fourteenth Amendment right to jury trial). For the reasons explained below, we conclude that, to the extent the trial court committed Cunningham error, such error was harmless.

[T]he 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. (Cunningham, supra, 127 S.Ct. at p. 860.) In Cunningham, the United States Supreme Court held that by placing sentence‑elevating factfinding within the trial judges province, Californias DSL violates a criminal defendants right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, supra, at p. 860.) The Cunningham court explained that because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the California DSL violates the bright-line rule in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Cunningham, supra, at p. 868.) Quoting Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) for the proposition that [t]he 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, the Cunningham court concluded that [i]n accord with Blakely, therefore, the middle term prescribed in California statutes, not the upper term, is the relevant statutory maximum. (Cunningham, supra, at p. 868.)

Here, the trial judge indicated that at least five separate aggravating factors existed which, in its opinion, each, individually, justified imposition of the upper term: (1) defendants prior criminal record; (2) defendant posed a danger to the community; (3) defendants past performance on probation and parole was unsatisfactory; (4) defendants lack of remorse; and (5) defendant was on parole at the time he committed the instant offenses. The court found no factors in mitigation. However, none of the aggravating factors were submitted to the jury for its determination; thus, argues defendant, the jurys verdict alone limited the permissible sentence on count 1 to the middle term of two years. (See Cunningham, supra, 127 S.Ct. at p. 860.) The additional judicial factfinding, defendant contends, resulted in the upper term on that count in violation of defendants right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Ibid.)

The People argue that we need not reverse the courts upper term sentence on count 1 because (1) the recidivism exception applies in this case, as defendant had prior criminal convictions, and (2) any Cunningham error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].

Cunningham did reaffirm the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi that [e]xcept for 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. [Citation.] (Cunningham, supra, 127 S.Ct. at p. 868, italics added, quoting Apprendi, supra, 530 U.S. at p. 490.) The Almendarez-Torres/Apprendi exception is sufficiently broad to encompass all matters ascertainable from the face of the prior judgment of conviction. (People v. Black (2007) 41 Cal.4th 799 (Black II); People v. McGee (2006) 38 Cal.4th 682, 707-709; People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) The United States Constitution does not mandate a jury trial on prior convictions, and any right to a jury trial would be purely statutory. (Apprendi, supra, at pp. 487-490; People v. Epps (2001) 25 Cal.4th 19, 23; see  1025.) By statute in California, a defendant is afforded a jury trial only as to the fact of those prior convictions alleged in the accusatory pleading as statutory sentence enhancements. ( 1025; People v. Epps, supra, at pp. 29-30.) Prior convictions considered as aggravating factors for the purpose of imposing the upper term may be determined by the court upon facts shown in the probation report, as the trial court did here, and need be established only by a preponderance of the evidence. ( 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).)

Here, one of the factors the trial court found in aggravation was defendants record of prior criminal convictions. This record is a matter which is ascertainable from the fact of the prior judgment of conviction; thus, it would be exempt from the necessity of a jury determination under the recidivist exception to Cunningham. (People v. McGee, supra, 38 Cal.4th at pp. 707-709; People v. Thomas, supra, 91 Cal.App.4th at pp. 222-223.) Moreover, in this case, the jury explicitly found true that defendant had served three prior prison terms which were based on three of his prior felony convictions. Thus, to the extent that the trial judges imposition of the upper term was based on those three prior convictions, the People argue that the courts actions were in compliance with Cunningham.

Defendant counters that section 1170 prohibits the dual use of defendants three prior felony convictions for the imposition of both the one-year prior prison term enhancements and the upper term on count 1: The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. ( 1170, subd. (b).) Defendants contention is correct; therefore, to the extent that the imposition of the upper term was based on defendants three prior convictions used to impose the one-year enhancements, the court was in error.

Nonetheless, as long as a single aggravating circumstance that renders 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.^[2] (Black II, supra, 41 Cal.4th 799.) Here, defendant had a prior criminal record which included five felony convictions and nine misdemeanor convictions. Even excepting the three prior felony convictions which were used as section 667.5, subdivision (b) enhancements in this case, the trial court still had before it defendants remaining two prior felony and nine prior misdemeanor convictions. Therefore, the trial court had before it at least a single aggravating factor for which imposition of the upper term was proper.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Richli

Acting P.J.

/s/ Gaut

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] In our tentative opinion issued on July 16, 2007, we conducted a harmless error analysis, concluding that any reliance by the trial court on defendants three prior convictions which were used as enhancements in his case was harmless beyond a reasonable doubt due to his numerous additional prior convictions. (Washington v. Recuenco (2006) __ U.S. __ [126 S.Ct. 2546, 165 L.Ed.2d 466]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) However, on July 19, 2007, the California Supreme Court issued its opinion in Black II, supra, 41 Cal.4th 799 establishing an eligibility factor analysis, a somewhat less rigorous standard for appellate review. We now apply that rationale to this case.