P. v. Mock

Filed 11/28/07 P. v. Mock CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

Rick Lee Mock appeals from the judgment entered following an order revoking probation. He previously pled no contest to vandalism causing damage over $400, count 1 (Pen. Code,  594, subd. (a)), and disobeying a domestic relations court order, a misdemeanor, count 2 (Pen. Code,  273.6, subd. (a)). Imposition of sentence was suspended and he was placed on probation. Following revocation of probation, he was sentenced to the upper term of three years on count 1 and a concurrent term on count 2. Appellant contends his sentence must be reversed because it was based on aggravating facts not admitted by appellant nor submitted to and found true by a jury. For reasons stated in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Appellant does not challenge the sufficiency of evidence to support his convictions and it will suffice to observe that on August 27, 2006, appellant violated a restraining order by entering the residence of Jan Davidson.[1] Thereafter while in custody, he broke the back passenger window of the Sheriffs patrol vehicle.

At the probation revocation hearing, it was established that appellant violated his probation by never reporting to the probation department and by violating a valid restraining order by again entering Davidsons home. Appellant testified that he received a head injury shortly after being released from county jail and was, therefore, unaware that he was required to report to the probation department.

Upon finding appellant in violation of probation, the court stated the appropriate term would be the high term based on appellants entire history going back to the earliest of the 04 cases, 3/11/04, the date of the first restraining order obtained by Brandi Richardson in December of 03, [which] clearly indicates that this is a long-standing process and a long-standing problem, and that the defendant has no interest whatsoever in complying with the courts orders or complying with the reasonable requests of other human beings.[2]

DISCUSSION

Appellant contends his sentence must be reversed because it was based on aggravating facts not admitted by appellant nor submitted to and found true by a jury. We disagree.

In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court concluded Californias determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and the Sixth Amendment to the United States Constitution. It also, however, reiterated that the fact of a prior conviction need not be submitted to a jury. (See Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856]; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] (People v. Black (2007) 41 Cal.4th 799, 818.) The prior conviction exception to the Apprendi rule has been construed broadly to apply to factors based on a defendants recidivism. (See People v. Black, supra, 41 Cal.4th at p. 819; People v. McGee (2006) 38 Cal.4th 682, 704; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.) Here, the trial courts reliance on appellants recidivism permitted the upper term sentence. Use of that factor did not violate his right to a trial by jury or proof of the fact beyond a reasonable doubt. (See People v. Yim (2007) 152 Cal.App.4th 366, 371.)

[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely,[[3]] the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (People v. Black, supra, 41 Cal.4th at p. 813, fn. omitted.) Thus, as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black, supra, 41 Cal.4th at p. 812.) Here, the trial court relied expressly upon appellants recidivism, viz., his entire history of repeatedly violating court orders. Accordingly, we need not consider whether reliance on other factors was error. [T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements. (People v. Sandoval (2007) 41Cal.4th 825, 838; see also People v. Black, supra, 41 Cal.4th at p. 813.)^[4]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P.J.

SUZUKAWA, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Appellants ex-girlfriend and the mother of his children, Brandi Richardson, rented a room in the home of Davidson.

[2] The probation report reflects that in 1996, appellant was convicted of inflicting corporal injury on a spouse, a misdemeanor (Pen. Code,  273., subd. (a)), and placed on six years probation. In 2000, he was convicted of battery against a former spouse/fianc, a misdemeanor (Pen. Code,  243, subd. (e)(1)), and placed on three years probation. In 2002, he was convicted of battery, a misdemeanor (Pen. Code,  243, subd. (e)), and placed on three years probation. In 2004, he was twice convicted of violating a protective order, a misdemeanor (Pen. Code, 273.6, subd. (a)), and placed on three years probation. In 2006, he was convicted of using or being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code,  11550, subd. (a)), and placed on three years probation.

[3]Blakely v. Washington (2004) 542 U.S. 296.

[4] Contrary to respondents claim, appellant did not forfeit his claim. At the time of sentencing on January 10, 2007, the trial court was required to follow People v. Black (2005) 35 Cal.4th 1238, and it would have been futile to assert a Blakely challenge. (See People v. Sandoval, supra, 41 Cal.4th 825, 837.)