P. v. Pitt

Filed 8/18/08 P. v. Pitt CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Bradley Joseph Pitt contends the trial court improperly sentenced him to an aggravated prison term. We disagree and affirm.

Procedural History[1]

On October 18, 2004, defendant was convicted by jury of forcible oral copulation (Pen. Code[2],  288a, subd. (c)(2)), felony sexual battery ( 243.4) and felony terrorist threats ( 422), arising from a single incident. The allegation that he had personally used a knife during that incident was not found true by the jury. He was sentenced to the aggravated term of eight years for the oral copulation; the four-year aggravated term for the sexual battery was run concurrently; and the three-year aggravated term for the terrorist threats was stayed pursuant to section 654.

In selecting the aggravated term, the trial court found as follows: [T]he defendant was armed with, although he did not use, according to the jurys finding, a weapon at the time of the commission of the crime . . . and . . . he was on probation when the offense was committed although it was for a misdemeanor matter.[3] Those are aggravating factors. [] I find no factors in mitigation.

Defendant appealed the courts imposition of the aggravated term in light of Blakely v. Washington (2004) 542 U.S. 296. In an unpublished opinion (A108453), this division affirmed appellants sentence. Following the decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), defendant filed a petition for habeas corpus in this court (A117463), which was denied, without prejudice, for defendants failure to have exhausted his remedy in the superior court. Defendant then filed a petition for habeas corpus in the Del Norte County Superior Court. Supplemental probation reports were prepared, which included additional information that defendant had suffered separate findings as a juvenile for first degree burglary and driving under the influence.

Defendant was again sentenced to the aggravated terms on each count.[4] We set forth the relevant portions of the trial courts ruling: In this matter, I conclude that . . . the factors that can be used for . . . sentencing that actually were either priors or found by the jury do still make the appropriate sentence the eight-year term. [] . . . [] [F]or [the] violation of Section 288a subsection (c)(2) of the Penal Code, forcible oral copulation, I find that the defendant should be and he is sentenced to the aggravated term of eight years. The term aggravated by the prior criminal history of the defendant. [] . . . I am not considering matters . . . for which he was acquitted or . . . dismissals occurred or . . . were arrests without . . . a finding, but that those adjudicated matters that resulted in a finding either as an adult or a juvenile can be and are considered by the Court. [] And . . . I take into account also the fact that in the commission of the crime, as the jury did find, Section 422, the making of a criminal threat and . . . the sexual battery, Section 243.4 subsection (a) that there was additional and excessive force beyond what was necessary for the actual commission of the crime itself . . . which are aggravating factors, and therefore for Count I he is sentenced to the aggravated term of eight years.

Defendant appeals, alleging that he was improperly sentenced to the aggravated term.[5]

Analysis

Defendant concedes, as he must, that  imposition 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.  (People v. Black (2007) 41 Cal.4th 799, 816, (Black).)

Here, we focus on defendants criminal history, which consisted of the two juvenile findings and the misdemeanorreckless driving probation that defendant was on

at the time of the crimes before us.[6] Defendant notes that the trial court did not specifically make a finding under California Rules of Court, rule 4.421(b)(2)[7] that his prior adult convictions and/or juvenile adjudications were numerous or of increasing seriousness. Further, he contends that such a finding would not have been supported by substantial evidence. Additionally, he points out that the general phrase used by the court, prior criminal history, is not an enumerated factor in rule 4.421, governing aggravated factors.

Rule 4.421 is not an exclusive list of permissible aggravating factors; the language of the rule indicates that the aggravating factors include those listed. Moreover, rule 4.408(a) provides: The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge. (People v. Brown (2000) 83 Cal.App.4th 1037, 1044.) Here, the trial court did not articulate the specific language of rule 4.421(b)(2), nor did it specifically refer, as it had at the original sentencing, to the fact that defendant was on probation at the time of the new offenses (an aggravating factor under rule 4.421(b)(4)). However, the courts concern about defendants prior criminal history, as a whole, was reasonably related to the decision being made. Evidence of this history was undisputed and amply justifies the imposition of the aggravated term.

Additionally, the fact that defendant was on probation at the time of the offense, in itself, is also an aggravating factorone enumerated in rule 4.421(b)(4). (See People v. Stuart (2008) 159 Cal.App.4th 312, 314 [appellate court determined the defendants six misdemeanor convictions were sufficient under rule 4.421(b)(2) to justify an aggravated sentence despite the fact that trial court did not mention them as a reason].)

Cunningham held that Californias determinate sentencing law violates the Sixth Amendment of the United States Constitution because it authorizes the judge, not the jury, to find the facts permitting an upper term sentence . . . . (549 U.S. at p. __ [127 S.Ct. at p. 871].) As the Supreme Court explained, the Federal Constitution's 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. (Id. at p. __ [127 S.Ct.at p. 860].) The prior conviction exception referred to in Cunningham pertains to all matters relating to recidivism. (People v. Thomas (2001) 91 Cal.App.4th 212, 221.)  Our Supreme Court has relied upon the distinction between sentence enhancements that require the finding of facts related to the current offense (more typically, a jury function), and the examination of court records to determine the nature and extent of a defendants criminal history (traditionally, a judicial function). (People v. McGee (2006) 38 Cal.4th 682, 709.) The latter does not fun afoul of Cunningham.

Finally, although defendant has not objected on appeal to the trial courts consideration of his prior juvenile findings per se, we are aware that the propriety of such consideration is an issue currently before the California Supreme Court. We agree with the analysis and conclusion of our colleagues in Division Four of this District: [S]ince a juvenile court can constitutionally and reliably adjudicate a delinquency matter without affording the minor a jury trial, there is no constitutional impediment to the subsequent use of the juvenile adjudication for purposes of enhancing an adult offenders sentence. (People v. Tu (2007) 154 Cal.App.4th 735, 750, review granted pending People v. Nguyen, S154847.)

Here, without any jury finding, the court properly relied upon defendants criminal history to aggravate his sentence. That the courts recitation of reasons did not conform exactly to the language of rule 4.421 is not material. The courts reasons were reasonably related to the decision being made. (Rule 4.408.)

The judgment is affirmed.

_________________________

REARDON, J. *

We concur:

_________________________

SIMONS, ACTING P. J.

_________________________

NEEDHAM, J.

        Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1] As defendant notes in his opening brief, the record on appeal is somewhat deficient. The relevant facts set forth here are not in dispute.

[2] All further statutory references are to the Penal Code.

[3] As evidence of defendants criminal history, the 2004 probation report has a California Department of Justice rap sheet attached. Several entries were redacted, leaving only the information that appellant was placed on a three-year misdemeanor probation in 2001 for reckless driving.

[4] Among the deficiencies in the record on appeal is the absence of any abstract of judgment from the 2007 resentencing. The trial courts oral ruling, however, was that the aggravated terms for the sexual battery and the terrorist threats were to run concurrently with the eight-year aggravated term for the oral copulation. No mention was made at resentencing of section 654.

[5] Defendant refers only to the aggravated term for the oral copulation. Presumably, his argument pertains to each of the aggravated terms imposed. We adopt his convention of referring to a single term.

[6] Defendant contends that the other aggravating factor relied upon by the courtthe additional and excessive force beyond what was necessary for the actual commission of the crime itselfis the type of factor requiring a jury finding under Cunningham and Black and that there was no finding by the jury that the force used to commit the oral copulation was greater than that required to effectuate the crime. The Attorney General seems to argue to the contrary. We need not address this issue because we find that the trial courts reliance on defendants criminal history was sufficient to justify the aggravated term.

[7] Further references to rules are to the California Rules of Court.