P. v. Gonzalez

Filed 2/27/08 P. v. Gonzalez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. Affirmed.

Jean Ballantine, 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, David Delgado-Rucci and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

Rafael Gonzalez filed a notice of appeal with this court following the judgment of conviction and an order sentencing him to state prison for 19 years for carjacking (Pen. Code,  215) and personal use of a firearm (Pen. Code,  12022.53, subdivision (b)). We appointed counsel to represent Gonzalez on appeal. Counsel filed a brief which set forth, in considerable detail, the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on appellants behalf. Appellant was given 30 days to file written argument in appellants own behalf. That period passed, and we received no communication from appellant.

We examined the record ourselves to see if we could find any arguable issue and found no arguable error in the determination of Gonzalezs guilt. The facts of the case were complex and sorting them out was doubtless difficult, but the legal issues in the case were properly resolved and we found ourselves in agreement with appellate counsel that there are no appellate issues with a reasonable prospect of success with respect to Gonzalezs guilt.

FACTS

Really, Gonzalez had little chance at trial. He was one of three men involved in the early morning gunpoint carjacking of Jose Hernandez red Toyota Corolla. He and his codefendant, David Melara, fled after crashing the car. Melara was immediately caught and arrested; Gonzalez was found, a few hours later, hiding in a bush, where he claimed to have been sleeping.

Gonzalez denied involvement in the carjacking, but when he was placed in an interview room with Melara, the two of them discussed the gun they had used and their conversation was surreptitiously recorded. Then, on his way to the booking area of the jail, Gonzalez boasted to a female jailer that he had stolen the gun from a police officer.

Needless to say, these last two facts were damning. Clarence Darrow would have been hard pressed to extend jury deliberations in a case in which his client had undermined his defense so effectively. The victim of the crime identified Gonzalez, and defendants own actions so powerfully bolstered his identification that the guilty verdicts the jury returned could not have come as a surprise to objective observers.

This is not to say the trial was without issues. But they were largely factual issues, resolved against appellant. His codefendant, having pled guilty and received a lenient sentence (three years), testified in his behalf and tried to exonerate Gonzalez, but the jury rejected his testimony. There were issues based upon the inconsistencies in the Spanish-speaking victims description of the crime and the criminals to English-speaking police, and his uncertainty about which of the two apprehended suspects was the gunman and which was his accomplice, but again, they were reasonably resolved against appellant and provide no reasonable basis for appeal.

Appellate counsel considered an insufficiency of the evidence argument based upon the factual difficulties of the case, but rejected it. We can see why: Appellant could have been convicted out of his own mouth; factual inconsistencies were of little value.

Counsel wisely examined the propriety of the recorded statement between appellant and Melara about the gun. Clearly if an appellate court could be convinced that evidence should not have been admitted, the conviction would be seriously undermined. But the law is clear that there is no reasonable expectation of privacy in a police interview room, and she correctly read the five cases and an Evidence Code section she provided us in her brief as leaving no room for suppression of the statement.

She considered contesting the propriety of the immunity granted to Melara for his testimony. But Melara ended up being called by and testifying for the defense. The prosecution never called him. The immunity grant was moot. Nor was the disparity between the sentence given Melara and that imposed upon appellant a fruitful inquiry: Appellant was found to have been the gunman, the more culpable role in the crime; his record included not only typically adolescent oppositional behaviors, but a felony offense committed when he was only 13; he was violent and disruptive while awaiting trial; his victim was 64 years old; and he was statutorily ineligible for probation. The sentence was harsh, given appellants age, but we could not say it was unreasonable under the circumstances.

Nor were the victims identifications of appellant and Melara improper. True, there were one-person showups in the field when police were trying to track down the missing carjacker, but the law has allowed such showups for at least 40 years, and this was precisely the kind of situation Stovall v. Denno (1967) 388 U.S. 293 [overruled on another ground in Griffith v. Kentucky (1987) 479 U.S. 314] anticipated. Indeed, if anything, this is a stronger case for field identification than Stovall, since less time had passed since the crime and the police had cordoned off an area in which to search for multiple suspects. Circumstances were more exigent here than in Stovall.

All that said, we were nonetheless concerned about the sentencing in this case. Whether appellants receipt of the upper term of nine years for the carjacking violated the dictates of Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S.___ was a matter we thought should be briefed.

So we asked the parties to brief it, and we now hold the sentencing was proper and the judgment must be affirmed.

DISCUSSION

The trial judge sentenced Gonzalez to the upper term based largely upon considerations that do not implicate the prohibitions of these cases. Among his several reasons for choosing the upper term, the court listed appellants prior juvenile record and the fact he was on probation when he committed this crime matters of public record about which there could be no dispute. Although Cunningham invalidated a significant part of the DSL and generally precludes the trial judge from finding facts or circumstances in aggravation that expose a defendant to an elevated or upper term sentence, the Supreme Court also reaffirmed its prior holdings that the trial court may increase the penalty for a crime based upon the defendants prior convictions without submitting that question to a jury. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1514, italics added.)

But the court also stated, as a basis for his sentencing choice of the aggravated term, Defendant has engaged in violent conduct and indicates a serious danger to society, and Defendants prior performance on probation was certainly unsatisfactory. It also noted that his crimes were of increasing severity. These bases for the upper term are problematic: The first does not distinguish this crime from any other carjacking, and the second and third might conceivably involve Apprendi considerations. We thought the parties should have a chance to address the issue of whether these three bases for sentencing are constitutionally acceptable or require a remand for a new sentencing hearing, so we ordered briefing on those questions.

Having reviewed that briefing, and the case law and statutory authority cited therein, we are convinced the trial courts sentence was constitutionally permissible. Gonzalezs appointed appellate attorney was correct in filing the Wende brief.

Ordinarily, 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 v. California (2007) 127 S.Ct. 856, 868.) But a court can determine for itself whether a defendant falls under a recidivism exception based on the defendants prior convictions. (Almendarez-Torres v. UnitedStates (1998) 523 U.S. 224; Apprendi v. New Jersey, supra, 530 U. S. 466.) While this case was originally problematic because the court had combined recidivism considerations with other bases for sentence aggravation, it was recently clarified considerably when our supreme court decided People v. Black (2007) 41 Cal.4th 799 (destined to be referred to as Black II to distinguish it from People v. Black (2005) 35 Cal.4th 1238). There, the court held that once a single aggravating factor has been found, rendering the defendant eligible for an aggravated sentence, 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. (Id. at p. 813.)

Here, the trial court relied, inter alia, upon Gonzalezs prior record (his numerous prior sustained petitions in juvenile proceedings), the fact he was on probation at the time the crime was committed, and the fact his offenses were increasing in seriousness. Any of these would have made him eligible for an aggravated sentence and allowed the court to consider other factors not submitted to the jury.

While Gonzalez contests the use of his prior juvenile convictions, and the issue is presently before our supreme court, we are inclined to adopt the reasoning of People v. Bowden (2002) 102 Cal.App.4th 387, which held sustained petitions to be convictions for Sixth Amendment purposes. We believe juvenile court proceedings afforded in this state protect the minors constitutional rights, albeit without a jury trial, and can be constitutionally considered in weighing sentencing alternatives. (People v. Lee (2003) 111 Cal.App.4th 1310, 1318 [[A] juvenile constitutionally and reliably [citation] can be adjudicated a delinquent without being afforded a jury trial . . . . [Citation.]].)

Whats more, we believe the trial court was justified in finding Gonzalezs offenses were increasing in seriousness. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. (Black II, supra, 41 Cal.4th 799, 820, quoting McGee, supra, 38 Cal.4th 682 at p. 706, fn. omitted.) Gonzalezs sustained petitions began with oral copulation with a six-year-old cousin (Pen. Code,  288a, subd. (b)(1))[1], and proceeded through a dismal history of minor offenses until drug offenses began appearing (possession of narcotics paraphernalia, heroin, marijuana, and methamphetamine) and possession of burglary tools. The present offense was clearly a more serious offense than anything he had done previously, and its range of punishment dwarfs his prior miscreance.

But the simplest and most ineluctable consideration here is that Gonzalez was on probation. California Rules of Court, rule 4.421 subdivision (b)(4) makes the fact a defendant was on probation at the time he committed an offense a factor to be considered in aggravation at sentencing. While Gonzalez contends nothing based on his juvenile record can be considered in aggravation and therefore the fact he was on probation for them is similarly out of bounds, we are unconvinced. We have previously stated our determination that Californias juvenile system affords sufficient protection of constitutional rights to allow its adjudications to be considered for purposes of sentencing in later cases. Whats more, we cannot conceive of a rule that would require the prosecution to prove a defendants prior juvenile history to a jury finding witnesses, tracking down evidence, refreshing recollections, re-opening old wounds in order to aggravate his sentence. We are convinced the fact Gonzalez was on juvenile probation at the time he committed the instant offense was something the trial court could constitutionally consider in sentencing him.

In fine, Gonzalez was eligible for the upper term for this offense on several grounds. That allowed the trial court to consider other factors not considered by the jury in computing his sentence. We find no error.

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

ARONSON, J.

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[1] Because Gonzalez was only 13 years old himself and the original allegation of force was abandoned, the maximum confinement for this offense was three years.