P. v. Randall

Filed 2/7/08 P. v. Randall 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Joshua Devin Randall was stopped for speeding by a California Highway Patrol officer on August 30, 2006. The officer detained appellant after appellant exited his vehicle. Appellant had a beer can in his hand and attempted to walk away from the officer, who grabbed him by the arm and brought him back. The officer detected a strong odor of alcohol, and placed appellant in the back seat of his patrol car. The officer then returned to the truck to make sure no one else was inside, and saw a pistol on the floorboard, which he later determined was loaded. The officer checked appellants driving record, which revealed appellants license had been revoked and he was a convicted felon.

Appellant was charged by an information filed September 25, 2006, with felony possession of a firearm by an ex-felon (Pen. Code,  12021, subd. (a)(1)) (count 1), misdemeanor driving under the influence of alcohol (Veh. Code,  23152, subd. (a)) (count 2), misdemeanor driving with .08 percent or more blood alcohol level (Veh. Code,  23152, subd. (b) (count 3), and misdemeanor driving with suspended or revoked license (Veh. Code,  14601.1, subd. (a)) (count 4). The May 26, 1999 prior felony conviction charged in count 1 was a violation of Vehicle Code section 2800.2.

On November 22, 2006, appellant entered a guilty plea to count 1. On April 17, 2007, appellant was sentenced to the aggravated term of three years. On appeal, appellant challenges imposition of the upper term.

Discussion

The trial court relied upon three factors in aggravation to impose the upper term: (1) appellants prior convictions as an adult are numerous, including at least two prior felony convictions (Cal. Rules of Court, rule 4.421(b)(2));^[1](2) appellant served prior prison terms (rule 4.421(b)(3)); and appellants prior performance on probation or parole has been poor (rule 4.421(b)(5)). Other than appellant entering a plea at a fairly early stage of the proceeding (rule 4.423(b)(3)), the court found no factors in mitigation.

I. Did the Trial Court Apply Cunningham to Its
Sentencing Decision?

Citing Cunningham v. California (2007) 549 U.S.___; [127 S.Ct. 856], the trial court began its sentencing discussion by stating, And I am looking at objective factors now that are not factors that the Cunningham case would prevent me from considering assuming that Cunningham applies now. But even if it did, [considering] the factors in aggravation (italics added), the aggravated term is required under the law. Appellant argues it is not clear the trial court understood Cunningham was binding upon it. We, of course assume the trial court properly understood the range of its discretion. (Evid. Code,  664 [It is presumed that official duty has been regularly performed.].) More significantly, it is clear that the trial court resolved any uncertainty in its mind by assuming that Cunningham governed its decision. Thus, we conclude that the trial court applied Cunningham in exercising its sentencing discretion.

II. Did the Trial Court Properly ApplyCunningham?

Appellant contends the upper term sentences must be reversed because they were based on facts not admitted by him or found true by the jury.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court applied the Sixth Amendment and held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham v. California, supra, 127 S.Ct. at page 871, the high court held that Californias determinate sentencing law violated a defendants federal right to trial because it assigned to the trial judge, not the jury, the authority to make factual findings that subject the defendant to the possibility of an upper term.

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the [statutory] maximum authorized by the jurys verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.] (People v. Sandoval (2007) 41 Cal.4th 835, 836-837.) Moreover, 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 a jury trial. (People v. Black (2007) 41 Cal.4th 799, 813.)

Here, the trial court properly relied on at least one aggravating circumstance that entitled the court to impose the upper term sentence: the existence of a felony conviction in addition to the one alleged as an element of count 1. The probation report reflects that appellant was convicted of a felony violation of Health and Safety Code section 11370.1 in 1995.

Because at least one aggravating circumstance was established by means that independently satisfied the requirements of the Sixth Amendment and rendered appellant eligible for the upper term, we conclude the court properly sentenced him to the upper term.

Disposition

The judgment of conviction and sentence are affirmed.

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

STEVENS, J.^*

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^[1] All rule references are to the California Rules of Court.

^* Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.