P. v. Frias

Filed 2/10/10 P. v. Frias 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Stephan G. Saleson, Judge. Affirmed.

Lauren E. Eskenazi, 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, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant, Joseph Frias, of two counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)),^[1]and one count each of unlawfully taking/driving a vehicle (Veh. Code, 10851, subd. (a)) and leaving the scene of an accident (Veh. Code, 20001, subd. (a)). He was sentenced to prison for five years, eight months and appeals, claiming the sentencing court erred in imposing the upper term for his first aggravated assault. We disagree and affirm the judgment.

Facts

On March 15, 2005, defendant was driving on the Interstate 10 freeway a car that had been stolen the day before. A Fontana Police Department motorcycle officer also on the freeway saw defendant speeding and changing lanes without signaling. As the officers motorcycle approached defendants car, defendant, driving 80 miles per hour, turned the steering wheel in the direction of the motorcycle, hit it, damaging it, and pushed it into the lane next to where it had been traveling. The officer, an experienced motorcyclist, was able to stabilize his bike. Defendant drove past the officer and began to take an off-ramp, with the officer following. The officer pulled to the side of the car defendant was driving and defendant, in the manner he used before, again tried to hit the officer, who applied his brakes, thus avoiding a collision. Defendant then drove over a curb and fled the scene, but the officer tracked him down.

Issues and Discussion

The sentencing court said the following regarding its imposition of the upper term for the first aggravated assault,  . . . People v. Black [(2007)] . . . 41 Cal.4th 799 . . .  [] [and] . . . People v. . . . Wilson[(2008)] . . . 44 Cal.4th 758 . . . provides ample authority for [the court] to use the prior convictionsand the probation report as the source of themto aggravate [defendants] term . . . under California Rule of Court 4.421^[2] . . . which [the court] does desire to do for reasons which I will state under California Rule of Court 4.421. []  . . .  [T]he probation report of [defendant], both juvenile and adult, . . . indicate that [defendant] has seemingly no regard for the laws of the state and is continuing to offend . . . . Th[e current case] seems to be a quite aggravated incident of criminal behavior and mentality . . . . [] Certainly[,] under 4.421, sub part (1), the crime involved a threat of great bodily harm.  . . .  [T]he [c]ourt will also find under sub part (2) [that] a weapon [was used]. [] Based on those factors, as well as 4.421, sub part (b)(1) and (2) which indicate: The defendant engaged in violent conduct that indicates a serious danger to society and then (2) being the prior convictions that I just cited. But the [c]ourt is relying essentially on the prior convictions to aggravate the [aggravated assault] in Count 3 to four years. The prosecutor then asked the court, Just for purposes of the record, it remains clear the Courts aggravation on Count 3 is based on the prior record, on prior convictions of [defendant]; is that correct? The sentencing court replied, Thats correct.

Defendant asserts that the sentencing court relied on several aggravating factors, none of which were found true by the jury or admitted by him, therefore, pursuant to Cunningham v. California (2007) 549 U.S. 270 (Cunningham), he must be resentenced. We do not agree with his premise.

Although the sentencing court listed a number of aggravating circumstances justifying the imposition of the upper term for defendants first aggravated assault, the court both initially and ultimately stated that it was relying on his prior convictions, which need not be submitted to the jury or admitted by defendant. (Cunningham, supra, 549 U.S. at pp. 270, 274, 275; Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi); Jones v. United States (1999) 526 U.S. 227, 248, 249 (Jones); People v. Wilson (2008) 44 Cal. 4th 799, 812 (Wilson); People v. Black (2007) 41 Cal. 4th 758, 816, 818, 819 (Black).^[3])

Even if defendants premise was true, and the trial court, in choosing the upper term, relied on, in addition to his priors, factors unrelated to them, 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. . . .  []  . . .  [T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements . . . , the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. []  . . .  []  . . .  The [sentencing] courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional. []  . . .  [I]mposition 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. (Black, supra, 41 Cal. 4th at pp. 813, 815, 816, italics added, footnotes omitted.) Thus, none of the aggravating factors cited by the sentencing court in addition to defendants prior convictions need to be found by the jury or admitted by defendant in order to be relied upon.

Moreover, in People v. Sandoval (2007) 41 Cal.4th 825, 852-55, the California Supreme Court held that the Legislatures circumvention of Cunningham by amending section 1170, subdivision (b), effective March 30, 2007, to increase the statutory maximum for a crime from the middle to the upper term could be applied retroactively to crimes occurring before the effective date of the amendment without violating the prohibition on ex post facto laws. Defendant acknowledges our obligation to follow Sandoval. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454.) Nevertheless, he contends that Sandoval was incorrectly decided in order to preserve the issue for federal review.

Defendant also asserts that the trial court erred by relying in part on defendants two prior juvenile adjudications to determine that his convictions were numerous and of increasing seriousness. He argues this reliance is improper because juvenile adjudications are not the products of verdicts by juries.

Recently, in Nguyen, supra, 46 Cal.4th 1007, 1010, 1019, the California Supreme Court held that Apprendi did not prohibit juvenile adjudications from being used as strike priors despite the absence of juries in juvenile proceedings. Our high court reasoned, The United States Supreme Court has confirmed that minors accused under the juvenile law of criminal conduct for which they may be confined in a correctional institution are constitutionally entitled to virtually all the procedural rights and protections they would enjoy as adult criminal defendants. [Citations.] However, the court has concluded that the Constitution does not afford the right to a jury trial in juvenile proceedings. [Citation.] []  . . .  At least five justices [who so held] cited, as a paramount concern, a reluctance to deem juvenile adjudications criminal proceedings within the Sixth Amendments ambit, given the juvenile systems greater emphasis on informality, rehabilitation, and parens patriae protection of the minor, as opposed to the more formal, adversary, and punitive nature of the adult criminal system. [Citations.]  . . .  [S]uch differences ameliorate the need, in the juvenile system, for the jurys role as a community buffer against government oppression, judicial bias, and politicized justice. [Citation.] [] On the other hand, five . . . justices . . . also were strongly influenced by their determination that a jury is not essential to fair and reliable factfinding in a juvenile case.  . . .  []  . . .  [A]ll California Court of Appeal panels to address the issue, both before and after Apprendi, have squarely held that the Fifth, Sixth, and Fourteenth Amendments permit the use of prior juvenile adjudications to enhance the sentences for subsequent adult offenses, even though there is no right to a jury trial in juvenile proceedings. The United States Supreme Court has denied all petitions for certiorari arising from these cases. [Citations.] []  . . .  Prior juvenile adjudications substantially satisfy all the reasons set forth in Almendarez-Torres, Jones, and Apprendi why prior convictions may be employed to increase the maximum punishment for a subsequent adult offense without the need for jury findings in the later case. . . .  Moreover, the prior criminal misconduct establishing this recidivism was previously and reliably adjudicated in proceedings that included all the procedural protections the Constitution requires for such proceedingsindeed, every substantial safeguard required in an adult criminal trial except the right to a jury. Use of such reliably obtained juvenile judgments of prior criminality to enhance later adult sentences does not offend an adult defendants constitutional right to a jury trial in an adult criminal proceeding. Conversely, it makes little sense to conclude, under Apprendi, that a judgment of juvenile criminality which the Constitution deemed fair and reliable enough, when rendered, to justify confinement of the minor in a correctional institution is nonetheless constitutionally inadequate for later use to establish the same individuals recidivism as the basis for an enhanced adult sentence. (Id. at pp. 1019-1022, footnotes omitted.)

Although Nguyen did not involve the precise issue here, its language makes clear that there is no constitutional prohibition on the use of juvenile adjudications to enhance adult sentences even though there is no right to a jury trial in juvenile court. A contrary holding by the Ninth Circuit in United States v. Tighe (9th Circuit 2001) 266 F. 3d 1187, which defendant calls to our attention, is unpersuasive. Three years after Tighe was decided, the same Circuit said,  . . . [W]e cannot hold that the California courts use of Petitioners juvenile adjudication as a sentencing enhancement was contrary to, or involved an unreasonable application of, Supreme Court precedent. (Boyd v. Newland (9th Circuit 2004) 393 F.3d 1008, 1017.) District Two disagreed with Tighe in People v. Bowden (2002) 102 Cal.App.4th 387, 393, 394. Moreover, the above-cited language in Nguyen is more persuasive and we are bound by it.

Finally, defendant contends that under Shepard v. United States (2005) 544 U.S. 13, 25, 26 (Shepard), the sentencing court here erred in relying on the probation reports statement of defendants prior juvenile adjudications and adult convictions. However, Shepard dealt with what documents could be used to prove the character of a prior conviction when that character was in dispute and had to be shown in order for a sentencing enhancement to apply.^[4] (Id. at pp. 15, 18.) Here, there was no dispute that defendant had suffered the adult convictions and juvenile adjudication listed in the probation report, although his counsel objected to the sentencing courts reliance on the probation reports statement of them as proof of their existence. Moreover, there was no dispute as to the nature of the priors, unlike in Shepard. Finally, as the People correctly point out, defendants assertion was rejected in Black, supra, 41 Cal.4th at page 818, footnote seven, and page 820, footnote nine.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

RICHLI

J.

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

^[2] That rule provides for the imposition of the upper term based on factors relating to the crime and to the defendant.

^[3] Therein, the California Supreme Court held,  . . . [T]he Almendarez-Torres exception [that the right to jury trial does not apply to the fact of a prior conviction] . . . 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 conviction. (Black, supra, 41 Cal.4th at p. 819.)

Defendant asserts that Black was incorrectly decided, as was People v. Towne (2008) 44 Cal.4th 63, 79-83 (Towne), holding that the Almendarez-Torres exception for priors from the requirement that they be found by a jury or admitted by defendant extends to whether a defendants performance on parole or probation was satisfactory due to the existence of a prior conviction. However, we are bound by Black and by the other opinions noted above. Defendant concedes this, raising the issue only for federal review.

More recently, in People v. Nguyen (2009) 46 Cal.4th 1007, 1018, footnote nine (Nguyen), the California Supreme Court reiterated its holdings in Black and Towne thusly, Both we and the United States Supreme Court have confirmed that the prior conviction exception extends beyond the bare fact that such a conviction occurred, and permits the sentencing court, without a jury, to determine related issues about a prior convictions relevance to the recidivist sentencing scheme, when those issues primarily involve either legal questions of a kind typically decided by judges, or factual matters that may be conclusively determined by examination of the official court record in the prior case. (See, e.g., . . . Black . . . [The court, not the jury, decides from court records whether prior convictions are numerous and of increasing seriousness.]; . . . Towne . . .  [The court, not the jury, may determine from records of prior convictions whether defendant served prior prison terms, committed the current offense while on parole, or has performed poorly on parole or probation.].)

^[4] In Shepard, it was whether the prior burglary conviction was for burglary of a building or enclosed space, in contrast to burglary of a boat or motor vehicle. (Shepard, supra, 544 U.S. at pp. 14-15.)