P. v. McPeters

Filed 8/27/08 P. v. McPeters 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. James S. Hawkins, Judge. Affirmed.

Correen Ferrentino, 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, and Gil Gonzalez, Kelley Johnson, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found appellant and defendant Gill McPeters guilty of burglary (Pen. Code,^[1] 459, count 1), and petty theft with a prior ( 666, count 2). The trial court found true the allegations that defendant had served three prior prison terms ( 667.5, subd. (b)). The court initially sentenced him to a total term of six years in state prison, which consisted of the upper term of three years on count 1, three years on count 2, stayed under section 654, plus one year on each of the prison priors. However, defense counsel requested defendant be sent to the California Rehabilitation Center (CRC), since he was addicted to narcotics. Both sides stipulated that defendant was an addict, so the court suspended execution of the sentence and committed him to the CRC.

On appeal, defendant contends that 1) the trial court abused its discretion in denying his request for an updated supplemental probation report, and 2) the imposition of the upper term violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham). We affirm.

FACTUAL BACKGROUND

On September 18, 2004, Adam Reyes, a loss preventions agent at a Target store, observed defendant take electronic memory cards from the electronics department of the store to the toy department. Reyes then saw defendant use a knife to cut the packaging on the cards and place them in his pocket. Reyes called the sheriffs department and advised them about what he had observed.

Officer Adam Yamaguchi arrived at the Target store and found defendant and Reyes in the electronics department. Reyes pointed defendant out to the officer. Officer Yamaguchi took defendant outside the store and searched him. He found scissors, a knife, and nine memory cards in defendants pockets. Defendant provided Officer Yamaguchi with a false name. Officer Yamaguchi arrested him.

ANALYSIS

I. The Court Did Not Abuse Its Discretion in Denying Defendants Request for a Supplemental Probation Report

Defendant contends that the court abused its discretion at the sentencing hearing in denying his request for an undated or supplemental probation report, since more than nine months had passed since the original report was prepared. We find no abuse of discretion.

A. Background

On July 27, 2005, a jury found defendant guilty of second degree burglary and petty theft. The court set the matter for sentencing on September 9, 2005, and ordered the probation department to prepare a presentence report. The court released defendant on his own recognizance.

On September 9, 2005, October 7, 2005, January 6, 2006, and January 13, 2006, the court continued the sentencing hearing.

On January 27, 2006, defendant failed to appear at the sentencing hearing scheduled for that day. The court issued a warrant for his arrest. On September 26, 2006, defendant was present in court. The court set the sentencing hearing for September 29, 2006, and ordered defendant to return. Defendant remained in the sheriffs custody.

At the outset of the hearing on September 29, 2006, defense counsel requested a supplemental probation report to find out what [defendant] has been doing since his absence, because there had been a lapse of time since the last probation report was prepared. Defense counsel added that a supplemental probation report might aid the court in sentencing him. The court responded, I would assume hes with his sister in Orange County doing rehab as he told us he would be while he awaited sentencing when he was O/Rd, right? Defense counsel answered in the affirmative. The prosecution indicated that it did not object to a supplemental report. The court commented, Well, you dont? I mean, why shouldnt he just be sentenced? Hes been outstanding for nine months. What new is going to change it? Hes been on probation or parole his entire life. He hasnt been out of custody or off parole or probation since, what, the mid 80s.

Defense counsel informed the court that the sentencing hearings kept getting continued because the court was sitting in Blythe and was not available. Then, when the court was available on January 6, 2006, the hearing was continued because defendant had ill family members he wanted to take care of before he was sentenced. The court noted that at the January 13, 2006, hearing, it issued a bench warrant. The court then said that it did not think it needed a supplemental report and that it could proceed. The court then stated that pursuant to California Rules of Court, rule 4.413 (rule 4.413) and section 1203, subdivision (e)(4), defendant was ineligible for probation except under unusual circumstances because of his prior felony convictions. The court found no unusual circumstances here. The court weighed the aggravating and mitigating circumstances and then sentenced defendant to the upper term on count 1, stayed the sentenced on count 2, and imposed one year for each of the three prison priors.

B. The Court Properly Denied Defendants Request for a Supplemental Report

Section 1203, subdivision (e)(4) provides that [e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to . . . . [] [a]ny person who has been previously convicted twice in this state of a felony . . . . Furthermore, a supplemental probation report is required only if the defendant is eligible for probation. (People v. Johnson (1999) 70 Cal.App.4th 1429, 1432 (Johnson).) Under rule 4.413(c), unusual circumstances permitting probation include: The circumstance giving rise to the limitation on probation (here, two prior felony convictions) is substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; the current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense; defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; the crime was committed because of a mental condition; and the defendant is young or old and has no significant record of prior criminal offenses.

Here, the court found that defendant had served three separate prior prison terms for felonies (driving under the influence and causing bodily injury (Veh. Code,  23153, subd. (a), petty theft with a prior ( 666) and possession of a controlled substance (Health & Saf. Code,  11350, subd. (a), and petty theft with a prior ( 666)). Thus, under section 1203, subdivision (e)(4), he was not eligible for probation, except in unusual circumstances. The probation officer and the court found that there were no unusual circumstances here. Indeed, there was no indication that any of the unusual circumstances listed in rule 4.413(c) applied. Moreover, at the sentencing hearing, defendant did not contend there were any unusual circumstances. Defense counsel merely asserted that defendant made all of his appearances during the trial, and cooperated with the probation department. On appeal, defendant additionally asserts that he was involved in drug rehabilitation during the nine months between his conviction and the sentencing hearing, that he apparently led a law-abiding life during that time, that he made numerous court appearances on the dates set for sentencing, and that he voluntarily turned himself in on the warrant. None of these circumstances qualifies as unusual circumstances under rule 4.413(c) that would allow the court to grant probation.

Relying on rule 4.411(c), defendant argues that a supplemental report was needed here because nine months had passed since the original report was prepared. Rule 4.411(c) provides: The court shall order a supplemental probation officers report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared. However, the Advisory Committee Comment states, The rule does not require a new investigation and report if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances. (People v. Dobbins (2005) 127 Cal.App.4th 176, 181.) As noted by the court here, there was no indication of changed circumstances.

In any event, because defendant was statutorily ineligible for probation, no supplemental probation report was required. Therefore, the court properly denied defendants request.

II. The Trial Court Properly Imposed the Upper Term

Defendant argues that the trial court abused its discretion in imposing the upper term on counts 1 and 2, based on facts that were not found true by the jury. He contends that his constitutional right to a jury trial under Cunningham was violated, and thus, his sentence should be reversed. We conclude there is no basis for reversal.

A. The Sentencing Hearing

At the sentencing hearing on September 29, 2006, the court indicated that it read the probation report. The court went through the aggravating factors listed in the probation report, including that defendant was armed with a weapon at the time of the commission of the crime; defendant demonstrated sophistication and professionalism in committing the current crimes; his prior convictions were numerous and increasing in seriousness; he had served prior prison terms; he was on parole at the time of the current crimes; and his performance on parole was unsatisfactory. The court then agreed with the probation officer that there were no mitigating factors. The court also stated that it went through defendants list of convictions and noted that he spent all of his adult life on probation or in prison. Moreover, there was only a handful of years when defendant was not convicted of a crime, and he was serving time in state prison during many of those years and was thus unable to reoffend. The court imposed the upper term on counts 1 and 2, stayed the term on count 2 under section 654, and imposed one year for each of the prison priors.

B. The Court Properly Imposed the Upper Term

Defendants have a constitutional right to have the jury, not the trial judge, decide all facts increasing the penalty for a crime beyond the prescribed statutory maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi); Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely).) Cunningham held that Californias determinate sentencing law violates the Sixth Amendment to the United States Constitution because it authorizes the judge, not the jury, to find the facts permitting an upper term sentence . . . . [Citation.] As the Supreme Court explained, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citation.] [] The prior conviction exception referred to in Cunningham derives from the Supreme Courts opinions in [Apprendi], [Blakely] and Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L. Ed.2d 350, 118 S.Ct. 1219]. Courts in California and in other jurisdictions have construed Apprendi, as requiring a jury trial except as to matters relating to recidivism. [Citation.] (People v. Yim (2007) 152 Cal.App.4th 366, 370 (Yim).) This exception for recidivism is not limited to the fact of a defendants prior conviction, but includes the defendant's status as a probationer or parolee at the time the current offense was committed and the existence of numerous or increasingly serious prior convictions. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1514 (Velasquez).)

The California Supreme Court recently decided People v. Black (2007) 41 Cal.4th 799 (Black II). There, the court 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. (Black II, at p. 813, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black II, at pp. 819-820.)

The trial court here determined that defendants prior convictions were numerous and increasing in seriousness, that he had served prior prison terms, that he was on parole at the time of the current crimes, and that his performance on parole was unsatisfactory. These factors were all related to recidivism. (Velasquez, supra, 152 Cal.App.4th at p. 1514; Yim, supra, 152 Cal.App.4th at p. 371.) Since these factors fall within the Apprendi exception to the jury trial right, the court did not violate defendants Sixth Amendment rights by imposing the upper term without these findings by a jury. (Yim, supra, at p. 371.) Furthermore, under these circumstances, the court was permitted to rely on the other factors, including that defendant was armed with a weapon at the time of the commission of the crime, and defendant demonstrated sophistication and professionalism, in imposing the upper term. (Black II, supra, 41 Cal.4th at pp. 819-820.)

Assuming arguendo that the court somehow erred in relying upon these factors to justify the upper term, we find any error harmless. In People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval), our Supreme Court held that violations of a defendants right to a jury trial on aggravating circumstances are subject to the harmless error analysis as set forth in Chapman v. California (1967) 386 U.S. 18, 23 (Chapman). Pursuant to Chapman and Sandoval, we may find an error harmless if we conclude the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury. (Sandoval, supra, 41 Cal.4th at p. 839.)

We conclude the jury would have undoubtedly found one or more of the aggravating factors true beyond a reasonable doubt, thereby authorizing imposition of the upper term. If the jury had been asked to determine whether defendants convictions were numerous (Cal. Rules of Court, rule 4.421(b)(2)), the jury would have undoubtedly found that factor true beyond a reasonable doubt. Defendants criminal record shows that he had been convicted of at least 15 misdemeanors and five felonies.

In view of the record, we conclude that any constitutional violation in imposing the upper term was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

GAUT

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise noted.