P. v. Bolton

Filed 10/23/07 P. v. Bolton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Rodney L. Walker, Judge. Affirmed as modified.

Ava R. Stralla, 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, Pat Zaharopoulos, and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Michael Dwayne Bolton appeals his conviction of two felony drug offenses. He has abandoned a procedural issue regarding transcription of the jury instructions, and otherwise raises sentencing issues. We direct that the abstract of judgment be corrected to reflect that his prison term priors were stricken, rather than stayed. In all other respects, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Riverside County Sheriffs Deputy Phillip Rice stopped defendants vehicle for having expired registration. Eventually, Deputy Rice asked defendant to step out of the car. Deputy Rice asked for, and received, permission to search defendants person and his car. In defendants pocket, Deputy Rice found a folded paper bindle. Inside the bindle were two white rocks, which were later determined to contain cocaine base. When Deputy Rice found the bindle, defendant blurted out, You got me.

Defendant was charged with possession of a controlled substance (Health & Saf. Code,  11350, subd. (a)) and transportation of a controlled substance (Health & Saf. Code,  11352, subd. (a)). The information also alleged that defendant had suffered a strike prior, and four prior prison terms.

Defendant testified on his own behalf at trial. He contradicted Deputy Rices testimony in minor particulars about the sequence of events during the traffic stop. He denied, for example, that the deputys patrol car had its emergency lights flashing, he gave a slightly different version of events leading up to the deputy asking him to get out of the car, he asserted that Deputy Rice patted him down without first asking for permission (although he admitted he would have given consent had he been asked), and similar details. Defendant admitted that the deputy removed a paper bindle from his pocket, but claimed that it contained breath mints, not cocaine.

The jury did not believe defendants denials and convicted him on both counts. At a bifurcated trial on defendants priors, the trial court found true that defendant had a prior strike conviction, and also found true the four prior prison term enhancements.

The court sentenced defendant to the aggravated term of five years on the transportation count (count 2), doubled to 10 years as a second strike. On count 1, the possession count, the court imposed the middle term of two years, stayed under Penal Code section 654. The court ordered the prior prison term enhancements stayed.

Defendant appeals.

ANALYSIS

I. Defendant Has Abandoned His Claim of Error In Failing to Transcribe the Courts Oral Reading of the Jury Instructions

Defendant initially raised the claim that he was deprived of his right to meaningful appellate review when his trial counsel stipulated that the court reporter need not report the reading of the jury instructions. As defendant acknowledged in his reply brief, People v. Garrison (1989) 47 Cal.3d 746, 780-781 and People v. Ladd (1982) 129 Cal.App.3d 257, 262-263, are controlling on this issue. Those cases hold that stipulating the court reporter need not transcribe the oral reading of jury instructions waives any error in that regard on appeal. In the absence of any showing that the oral reading of the instructions deviated in any way from the written instructions contained in the record, any contention of error is speculative and insufficient to show prejudice or any reason for reversal. Defendant has conceded this issue.

II. The Aggravated Sentence Was Proper

Defendant contends that the trial court improperly imposed the aggravated sentence in violation of his Sixth Amendment right to a jury trial as explained in Blakely v. Washington (2004) 542 U.S. 296 [125 S.Ct. 21, 159 L.Ed.2d 85] and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856].

The California Supreme Court, in People v. Black (2005) 35 Cal.4th 1238 (Black I), held that the aggravated term under Californias determinate sentencing law was analogous to the federal sentencing guidelines in United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621], describing a range within which a court could exercise judicial discretion in imposing sentence. The United States Supreme Court, in Cunningham v. California, supra,127 S.Ct. 856, rejected that view, clarifying that, under Californias determinate sentencing scheme, the middle term, not the aggravated term, is generally the statutory maximum term that may be imposed without additional findings. Where additional findings are required to impose the aggravated terme.g., the aggravating factors required under California lawthe facts underlying those findings are generally required to be found by a jury. (Id. at pp. 875-876.)

In People v. Black (2007) 41 Cal.4th 799 (Black II), however, the California Supreme Court explained that, [u]nder Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at p. 813, citing People v. Osband (1996) 13 Cal.4th 622, 728.)

In addition, it is clear under Almendarez-Torres v. United States (1998) 523 U.S. 224, 230 [118 S.Ct. 1219, 1224, 140 L.Ed.2d 350, 359] (Almendarez-Torres) and People v. McGee (2006) 38 Cal.4th 682, 698, that, although generally  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  (Cunningham v. California, supra, 127 S.Ct. at p. 868), the fact of a prior conviction is an exception to the requirement of a jury finding. Recidivist conduct, as evidenced by the fact of a prior conviction, does not relate to the elements of the current offense. Rather, it constitutes as typical a sentencing factor as one might imagine (Almendarez-Torres, supra, 523 U.S. 224 at p. 230), and has historically been entrusted to the discretion of the sentencing judge without the need for jury findings.

Defendant here had suffered a prior serious or violent felony, which qualified as a strike. He also had four prior prison terms. His recidivist conduct rendered him subject to the aggravated term without the requirement of any additional jury findings. Defendants sentence did not violate his Sixth Amendment jury trial rights.

III. The Abstract of Judgment Should Be Corrected

Finally, defendant argues that the trial court erred in staying his prior prison term enhancements, rather than striking them. The People concede that the trial court made abundantly clear that it did not intend to impose the prior prison term enhancements. Prior prison term enhancements must be either imposed consecutively or stricken. The court may not stay the enhancement; it is mandatory unless stricken. (See Pen. Code,  667.5, subd. (b); People v. Langston (2004) 33 Cal.4th 1237, 1241.)

Because the trial court made clear its intent, remand for resentencing is not required. (People v. Coelho (2001) 89 Cal.App.4th 861, 889-890.) The trial court is directed to amend the abstract of judgment to strike the prison term prior enhancements, rather than staying them.

DISPOSITION

The trial court is directed to correct the abstract of judgment to reflect that the prior prison term enhancements are stricken, not stayed. A copy of the corrected abstract is ordered to be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

GAUT

J.

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