P. v. Dunlap

Filed 1/8/08 P. v. Dunlap CA5

Opinion following remand by Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge.

Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found Dwayne Dunlap guilty of possession of marijuana in a state prison and found three prison term prior allegations true. ( 667.5, subd. (b), 4573.6.^[1]) The court sentenced him to an aggregate seven-year term (the aggravated four-year term on the possession and a one-year term on each of the priors). On appeal, he argued that the lack of jury findings on circumstances in aggravation made the courts imposition of the aggravated term violative of his federal constitutional rights to due process and jury trial. In reliance on People v. Black (2005) 35 Cal.4th 1238 (Black I) and in deference to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto Equity), we affirmed the judgment. (People v. Dunlap (Dec. 1, 2006, F049177) [nonpub. opn.].)

Weeks later, the United States Supreme Court issued Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856; 127 S.Ct. 856] (Cunningham), which overruled Black I and precipitated the California Supreme Courts initial issuance of a grant-and-hold (Cal. Rules of Court, rule 8.512(d)(2)) and subsequent order of a transfer without decision (Cal. Rules of Court, rule 8.528(d)) with directions to vacate our decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Having done so, and having read the supplemental briefing of both parties, we again affirm the judgment.

DISCUSSION

The probation officers report listed no circumstances in mitigation and four circumstances in aggravation:

Rule 4.421(a)(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission.

Rule 4.421(a)(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism.

Rule 4.421(a)(10) The crime involved a large quantity of contraband, consisting of approximately 17.8 grams of marijuana.

Rule 4.421(b)(2) The defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or increasing in seriousness.

As to the last circumstance in aggravation, the probation officers report listed six priors with the arrest, the charge, and the disposition of each. Three were the prison term priors on which the court imposed a one-year term each. ( 667.5, subd. (b).) One of the other three was a felony initially alleged in the information as a prison term prior but later stricken by the court as incorrect before the bifurcated trial on the prison term priors. The other two were a wobbler and a misdemeanor, respectively.

The court found no particularly significant mitigating factors. The court characterized as not particularly persuasive or, if not duplicative with respect to the enhancement[s] that are being imposed, probably dangerously close to being a dual use problem a number of the aggravating factors in the probation officers report. (Cf.  1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) Nevertheless, the court continued, the circumstances of this offense are somewhat more serious because of Mr. Dunlaps inmate status, number one, and number two, it is true that Mr. Dunlap was serving as a steward or trusty, given a degree of latitude and ability and freedom to go around the visiting room that was not afforded other other inmates. On the basis of those two circumstances in aggravation, the court imposed the aggravated term.

The United States Supreme Court has held 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. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 873; 127 S.Ct. at p. 868], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) The California Supreme Court has held that the 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, oris justified based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816.)

On the premise that the aggravating circumstance that [Dunlap] was an inmate (making the offense more serious) was inherent in the jurys finding that [he] possessed marijuana in state prison because that was the theory of the prosecutions case and it was undisputed that [he] was, in fact, an inmate, the Attorney General argues there was no Cunningham error with reference to that circumstance in aggravation. (Italics added.) First, inmate status is not an element of the crime. ( 4573.6.) Second, Dunlaps inmate status was not found to exist by the jury. (Black II, supra, 41 Cal.4th at p. 816.) We reject the Attorney Generals argument.^[2]

On a record showing that the court chose not to consider Dunlaps priors as circumstances in aggravation (cf. 1170, subd. (b); Cal. Rules of Court, rule 4.420(c)), that the jury did not find and he did not admit either of the courts two circumstances in aggravation, and that both were based upon the facts underlying the crime, we conclude that Dunlaps Sixth Amendment rights were violated by the imposition of an upper term sentence. (Sandoval, supra, 41 Cal.4th at pp. 837-838, citing Chapman v. California (1967) 386 U.S. 18.) As to whether the error was harmless beyond a reasonable doubt, our duty is to determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. (Sandoval, supra, 41 Cal.4th at p. 838.)

The California Supreme Court has observed that to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. (Sandoval, supra, 41 Cal.4th at p. 840; italics added.) The record here is quite the contrary. Since substantial evidence shows inmate status, which is neither vague nor subjective, the courts Cunningham error was harmless beyond a reasonable doubt. (Sandoval, supra, 41Cal.4th at pp. 838-839.)^[3]

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.

^[1]Statutory references are to the Penal Code unless otherwise noted.

^[2]The issue of whether the courts other circumstance in aggravation Dunlaps service as a steward or trusty in state prison satisfies Cunningham is not before us since the Attorney General understandably does not make that argument.

^[3]To preserve his right to federal court review, Dunlap acknowledges with commendable candor that the doctrine of stare decision in Auto Equity obliges us to follow Sandoval and argues that the California Supreme Courts prejudice analysis in that case is wrong. Duly noted.