P. v. Hernandez

Filed 9/26/07 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J. Thompson Hanks, Judge. Affirmed.

H. Reed Webb, 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, David Delgado-Rucci and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Introduction

Defendant Salvador Tovar Hernandez challenges his prison sentence as a violation of his Sixth and Fourteenth Amendment rights to a jury trial as interpreted by the United States Supreme Courts recent decision in Cunningham v. California (2007)___U.S.___ [127 S.Ct. 856], (Cunningham). We find no Cunningham violation and will affirm the sentence.

Faccts and Procedural History^[1]

This appeal is from two separate cases consolidated for review here. The charges in the first case, RIF 120331, arose out of events that took place on November 14, 2004. Defendant, who was on probation at the time, repeatedly telephoned and threatened his estranged spouse, intentionally injured her hand by twisting and bruising it, and punched her boyfriend in the eye and her 14-year-old son in the abdomen. On February 9, 2005, in a plea bargain with the district attorney pursuant to Penal Code section 1192.5,^[2]defendant pled guilty to one felony count of corporal injury to a spouse ( 273.5, subd. (a)) and one misdemeanor count of stalking ( 646.9, subd. (a).) In accordance with the negotiated disposition, the court dismissed one felony count of child endangerment

( 273a, subd. (a)) and one count of misdemeanor battery ( 242). Defendant was placed on three years formal probation, and sentenced to 130 days time

served in local custody. Among the terms of his probation were that he violate no law, not have any negative contact with his estranged spouse, and not have in his possession any controlled drugs or drug paraphernalia.

Almost exactly one year later, on November 10, 2005, in a second case (RIF 127037) defendant was arrested and charged with felony possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), misdemeanor possession of drug paraphernalia (Health & Saf. Code, 11364), and having violated his probation in case number RIF 120331. The new case followed an incident that had occurred 10 days earlier. Despite a restraining order and the terms of probation in the case from the previous year, defendant entered the apartment of his estranged wife, pulled a knife in the course of an argument with her, her son, and her boyfriend, and threw a wine bottle at their apartment.

Defendants wife requested that he be prosecuted for violating the restraining order and on November 10, probation officers went to his residence to conduct a probation search and to arrest him for the violation. In plain sight on the dresser in his room the officers discovered a plastic baggie containing methamphetamine and drug-use paraphernalia.

On August 1, 2006, a jury convicted defendant of both charged drug offenses and the court found him in violation of the terms of probation in the 2004 case, RIF 120331. The presentence probation reports revealed that defendant (who used up to 11 aliases, 10 different social security numbers, and 10 different birth dates) was a chronic recidivist with a history of multiple convictions, jail sentences, and probation revocations extending back to 1996. His past offenses included felony drug possession and use (Health & Saf. Code, 11377, subd. (a) & 11550, subd. (a)); multiple driving under the influence and driving without a license or with a suspended license convictions (Veh. Code, 23152, subd. (a), 12500, subd. (a), & 14601.1, subd. (a)); and stalking, terrorist threats, and attempted vandalism convictions. (Pen. Code, 422, 646.9, subd. (a), & 664/594, subd. (b).) He had served six separate jail terms, three of them for one year each. Despite DUI and domestic violence classes, he had done poorly on his numerous grants of probation. He had been expelled from his 2005 domestic violence class for excessive absences. To the probation officer, defendant denied that he had done anything wrong and showed no remorse for his recent crimes. He said the police reports contained a lot of lies, that he was arrested for nothing, and that he did not use drugs. The probation officer recommended that probation be denied and defendant be sentenced to state prison.

At a sentencing hearing on September 5, the court indicated that it had received and considered both probation reports. Defense counsel argued that because of his drug problems and possible mental health issues, her client should be placed on probation rather than sent to prison. I cant dispute the fact that he has been charged with numerous types of crimes throughout the years, and I cant dispute the fact hes been convicted of them. The only thing Im putting forth to the Court is that I think that this is a person that needs help. If probation was not to be granted, counsel requested concurrent low-term sentences for all the offenses in both cases including the violation of probation. The prosecutor asked that the court impose midterms and that the sentences be run consecutively.

The court sentenced defendant to the upper term of three years for the felony drug possession conviction in the 2005 case, RIF 127037. It explained its upper term choice by noting, among other things, that defendants convictions as an adult were numerous and that he was on probation when the current offenses were committed. (Cal. Rules of Court rule 4.421(b)(2), (4).) For the felony infliction of corporal injury to a spouse conviction in the 2004 case, RIF 120331, the court imposed one-third the midterm of three years to run consecutively to the three year term in the drug case. Sentences for the misdemeanor convictions in both cases were set at 6 months each to run concurrently with the terms on the felony counts.

Discussion

Standard of Review and Sentence Selection

We review a trial courts sentencing decisions for abuse of discretion. The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] Concomitantly, In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

The imposition of a prison term is a sentencing choice requiring that the trial court understand the nature of its discretionary power and state the reasons for its choice pursuant to the requirements of Penal Code section 1170, subdivision (c). (People v. Leung (1992) 5 Cal.App.4th 482, 506.) Penal Code section 1170, subdivision (c) provides that, The court shall state the reasons for its sentence choice on the record at the time of sentencing. One constitutionally valid circumstance in aggravation is sufficient to support imposition of an aggravated term. (People v. Osband (1996) 13 Cal.4th 622, 728.) And, When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492.)

As the United States Supreme Court has repeatedly held, Other than the fact of a prior conviction, any fact that increases the penalty . . . must be proved beyond a reasonable doubt. (Blakely v. Washington(2004) 542 U.S. 296, 302, quoting Apprendi v. New Jersey (2000) 530 U.S. 466,490, emphasis added. See also Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-248. [Recidivism is a sentencing factor, not an element of the underlying crime and therefore not subject to the constitutional requirement of proof beyond a reasonable doubt].) In Cunningham, the case on which defendant seeks to rely, the Court held that Californias determinate sentencing law violated the Apprendi-Blakely rule, but it reaffirmed the fact of a prior conviction exception. (Cunningham, supra, 127 S. Ct. 856, 860.) Since Cunningham, our own high court has held that, If one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely,the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (People v. Black (July 19, 2007, S126182)___Cal.4th ___, [2007 WL 2050875, p. *7], fn. omitted.)

Analysis

Here, in accordance with the statutory requirement, the trial court explained the reasons for its sentencing choice on the record, emphasizing that defendant had numerous prior convictions and that he was on probation for one of those convictions at the time he committed his current offense. The prior convictions were also admitted by defendants own counsel. Under these circumstances, with one aggravating factor established in accordance with constitutional requirements, defendant was a recidivist not legally entitled to the middle term. (People v. Black, supra, 2007 WL 2050875 at p. *7.) There was no Blakely or Cunningham error, and no abuse of discretion, in the trial courts decision to sentence defendant to the upper term.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

MILLER

J.

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^[1] Because appellant pleaded guilty in the first case, a number of facts are taken from the probation officer's presentence report.

^[2] All further code references are to the Penal Code unless otherwise indicated.