P. v. Bobbitt

Filed 11/18/08 P. v. Bobbitt 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Bert L. Swift, Judge. Affirmed.

Jeffrey S. Kross, 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, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Robert Forest Bobbitt pled guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and was granted probation for three years pursuant to Proposition 36 (Pen. Code, 1210.1). Probation was terminated on December 18, 2007, and defendant was sentenced to the upper term of three years in state prison. Citing the Supreme Courts decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), defendant argues the trial court violated his constitutional right to a jury trial when it imposed the upper term.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and his mother were arrested on May 26, 2004, when police served a narcotics search warrant at their home and found methamphetamine. In a complaint filed May 28, 2004, the mother was charged in count 1 with possession of methamphetamine for sale. (Health & Saf. Code, 11378.) One prior conviction for a violation of Health and Safety Code section 11378 was also charged against the mother.

In count 2, defendant was charged with possession of methamphetamine. (Health & Saf. Code, 11377, subd. (a).) Pursuant to a plea agreement, defendant pled guilty to the offense, was deemed eligible for sentencing under Proposition 36, and granted three years probation subject to various terms and conditions, including a drug treatment program. At the same time he pled guilty in this case, defendant also pled guilty in a separate case to a misdemeanor described as theft from a merchant.

Defendant violated his probation on April 28, 2005, June 30, 2005, and August 26, 2005, by failing to appear and to participate in treatment, but probation was reinstated each time. On February 16, 2006, the terms and conditions of defendants probation were modified to include participation in the Drug Court Rehabilitation Program and 60 days in county jail. He was then released into a residential drug treatment program.

On November 16, 2007, defendant was arrested for driving under the influence in violation of Vehicle Code section 23152, subdivision (b). During a hearing on December 17, 2007, defendant indicated through counsel he was willing to stipulate that he violated his probation by driving under the influence. At this time also, defendant had several other misdemeanor cases pending.

At the next hearing on December 18, 2007, defendants probation was terminated and he was sentenced to an aggravated term of three years in state prison. Defendants counsel argued the appropriate sentence was the low term of 16 months, because there were circumstances in mitigation and no circumstances in aggravation. As mitigating circumstances, counsel cited defendants minimal prior record and his drug addiction. According to counsel, defendants prior record was minimal because he only had three or four misdemeanor convictions, and this case was his only felony conviction.

The district attorney responded as follows: He has a number of prior misdemeanor offenses dating back to 1993. . . . He has convictions for drug-related offenses, driving under the influence and past charges including burglary, petty theft and drunk in public, a theft-related offense in 2005, grand theft reduced to a misdemeanor. It appears the only felony conviction is the current case. After a brief discussion concerning the dates of the prior convictions, the court stated as follows: So since the charges in this case, he has incurred, one, two, three, four more cases. . . . [T]hree are convictions, misdemeanors. [] . . . [] And he just suffered one conviction, and thats for the misdemeanor. So two pending 11550^[[1]] pretrials, one conviction of driving under the influence, one conviction of 11364,^[[2]] and now hes here because he didnt complete drug court, with three violations of drug court during the time that he was in, had the opportunity. [] So Im going to find that the aggravated term is the appropriate term in this case, three years.

DISCUSSION

Defendant contends the trial court violated Cunningham when it imposed the upper term based on his prior misdemeanor convictions and his purported failures in drug court, which were not admitted or tried to a jury. Although defendant acknowledges we are bound by decisions of our Supreme Court,^[3]he argues that the California Supreme Court incorrectly interpreted Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). He believes the California Supreme Courts decision in Black II is directly contrary to Cunningham because it concluded the upper term becomes the statutory maximum based on the single aggravating factor of prior convictions. Because he contends the purported sentencing error was not harmless under Sandoval, he argues we should remand his case to the trial court for resentencing. In our view, defendant misreads Cunningham.

In Cunningham, the Supreme Court concluded Californias determinate sentencing law (DSL) violates a criminal defendants right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term 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, italics added.) In response to Cunningham, our Supreme Court in Black II essentially held a remand is unnecessary where the record shows that in imposing an upper term the trial court relied on a single aggravating factor, which meets constitutional standards, such as the defendants criminal history, even if the court also relied on other factors. (Black II, supra, 41 Cal.4th at pp. 815-820 [stating that 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].) In other words, defendants misdemeanor convictions are sufficient to justify imposing an upper term, so a remand would be meaningless. As defendant acknowledges, we are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

We also note the Legislature amended the DSL effective March 30, 2007, in response to Cunningham. (Sandoval, supra, 41 Cal.4th at p. 836, fn. 2.) As a result of the amendments, trial courts now have the discretion to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Id. at pp. 846-847, citing Pen. Code, 1170, subd. (c), as amended.) Rather, a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. (Id. at p. 848.) Here, the record shows defendant was sentenced on December 18, 2007. It is therefore apparent defendant was not even sentenced under the sentencing scheme found unconstitutional by the Supreme Court in Cunningham, so his reliance on Cunningham is questionable.

In Sandoval, supra, 41 Cal.4th at pages 845-857, our Supreme Court held it is constitutionally appropriate to apply the amended version of the DSL in all sentencing proceedings conducted after the effective date of the amendments, regardless of whether the offense was committed prior to the effective date of the amendments. As defendant acknowledges, we are bound by the Sandoval decision. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

RICHLI

J.

MILLER

J.

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^[1] Health and Safety Code section 11550, subdivision (a), makes it unlawful to be under the influence of a controlled substance.

^[2] Health and Safety Code section 11364 makes it unlawful to possess devices used to ingest controlled substances.

^[3] Defendant has represented that he raises the issues in his appeal to preserve them for federal review.