P. v. Ritchie

Filed 1/9/08 P. v. Ritchie CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Patrick Shannon Ritchie timely appeals from an October 6, 2006, judgment sentencing him to 10 years and four months in prison pursuant to a plea agreement regarding crimes charged in three separate cases. In calculating defendants prison term, the trial court selected the upper term of three years for defendants admission to petty theft with a prior theft conviction (Pen. Code,[1]  666). Defendant argues on appeal that under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the trial court violated his federal constitutional rights in selecting the upper term because it relied on facts that were neither found by a jury beyond a reasonable doubt nor admitted by defendant. We conclude this contention is without merit and thus affirm.

Background

I. The First Case (Case No. CR900433).

On March 28, 2005, in the first case at issue in this appeal (case No. CR900433), the Lake County District Attorney filed an information charging defendant with possession of heroin for sale (Health & Saf. Code, 11351) based on an incident occurring April 2, 2004.[2] The information also alleged a prior strike ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and alleged that defendant had served four prior prison terms ( 667.5, subd. (b)).

On April 28, 2005, a jury found defendant guilty of the lesser included offense of possession of heroin (Health & Saf. Code, 11350). However, on July 11, 2005, the trial court granted defendants motion for a new trial on the ground that the jurys foreperson committed misconduct by failing to disclose during voir dire that she had a criminal case pending against her.

II.TheSecond Case (Case No. CR900117).

On March 28, 2005, in the second case at issue (case No. CR900117), the district attorney filed an information charging defendant with petty theft with a prior conviction ( 666) based on an incident occurring January 26, 2004. The information contained the same prior strike allegation and four prior prison term allegations as in the first case ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i), 667.5, subd. (b)). This second information further alleged that defendant committed the petty theft while released on bail or on his own recognizance ( 12022.1).

III.The Third Case (Case No. CR909564).

On June 6, 2006, in the third case at issue (case No. CR909564), the district attorney filed a complaint charging defendant in count 1 with second degree burglary ( 459), and in count 2 with petty theft with a prior conviction ( 666), both counts based on an incident occurring April 19, 2006. The complaint also alleged the same prior strike and four prior prison terms charged in the first and second cases ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i), 667.5, subd. (b)), as well as two out-on-bail clauses ( 12022.1) alleging that defendant committed the crimes while released on bail or on his own recognizance in the first and second cases.

IV.TheGuilty Pleas.

On April 29, 2005, defendant pleaded guilty in the second case (case No. CR900117) to petty theft with a prior conviction ( 666) and admitted the four prior prison term allegations alleged in both the first and second cases ( 667.5, subd. (b)).

On September 8, 2006, defendant pleaded guilty in the first case (case No. CR900433) to possession of heroin (Health & Saf. Code, 11350). In the third case (case No. CR909564), he pleaded guilty to petty theft with a prior conviction ( 666), and specifically admitted he had suffered the six prior convictions listed in that count of the complaint. He again admitted the four prior prison terms ( 667.5, subd. (b)). He also admitted in the third case that he was released on bail or on his own recognizance in the first case when he committed the petty theft with a prior conviction charged in the third case ( 12022.1). On the basis of these respective pleas, the trial court granted the district attorneys motion to dismiss the balance of the remaining charges.

V.The Sentencing Hearing.

On October 6, 2006, the trial court denied defendants request for probation and instead sentenced him to a total term of 10 years 4 months in prison. This term consisted of the upper term of three years for defendants admission to petty theft with a prior ( 666) in the third case (case No. CR909564); a two-year consecutive term for defendants admission also in the third case to one of the out-on-bail clauses ( 12022.1); consecutive eight-month terms for defendants admission in the first case (case No. CR900433) to possession of heroin (Health & Saf. Code,  11350, subd. (a)) and for his admission in the second case (case No. CR900117) to petty theft with a prior conviction ( 666); and four one-year consecutive terms for each of the four prison prior terms ( 667.5, subd. (b)) admitted by defendant.

Before imposing sentence, the trial court described the incidents leading to the three cases, recited defendants admissions in those three cases, and then summarized defendants criminal history as consisting of eight felony convictions between 1988 and 2004: possession of methamphetamine, two car thefts, two grand thefts, second degree robbery, possession of a controlled substance, and possession of methamphetamine. The trial court also noted defendant had been convicted of six misdemeanors during that period. The trial court further noted that defendant had served four prior prison terms and had violated parole several times.

Defense counsel admitted during the sentencing hearing that defendant does have a long record and that defendant had some violence in his record. He argued for imposition of the middle term based on defendants longstanding drug addiction, the fact that his violent convictions were suffered long ago, defendants good attitude, the relatively minimal loss to the victim, and his assertion that defendants convictions, though admittedly numerous, were decreasing in seriousness. The prosecutor argued the upper term would be justified based simply on defendants criminal record.

The trial court concluded the upper term of three years for defendants admission in the second case to petty theft with a prior was warranted based on its conclusion that the circumstances in aggravation outweighed the circumstances in mitigation. In mitigation, the trial court noted that defendant had voluntarily acknowledged wrongdoing at an early stage of the criminal process (Cal. Rules of Court,[3] rule 4.423(b)(3)).[4] In aggravation, the court relied solely on facts relating to defendants extensive criminal record, as opposed to the crimes at issue in the three cases. In particular, the court noted that: there was evidence that defendant had engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)); defendant had numerous prior convictions (rule 4.421(b)(2)); defendant was on parole when the crime was committed (rule 4.421(b)(4)); and defendants prior performance on probation and parole had been unsatisfactory (rule 4.421(b)(5)). The court concluded by saying that this was not even a close case. If I were to not do what Im doing now, then theres hardly a case in which aggravated terms should be imposed.

Discussion

I.                   No Forfeiture or Waiver.

Initially, the Attorney General argues that defendant either forfeited or waived his argument under Cunningham by failing to object at the time he was sentenced under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), or the right to jury trial. We conclude there was no such forfeiture or waiver. Reviewing courts have traditionally excused parties for failing to raise an issue . . . where an objection would have been futile or wholly unsupported by substantive law then in existence. (People v. Welch (1993) 5 Cal.4th 228, 237.) Defendant was sentenced on October 6, 2006. At that time, our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), holding that Californias determinate sentencing law (DSL) does not implicate a defendants Sixth Amendment right to a jury trial (id. at p. 1244), remained good law, and the trial court was bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, an Apprendi, Blakely,or right to jury trial objection at the time of defendants sentencing would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval) [finding no forfeiture for failure to object because [h]ad defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request].)

II. Prior Conviction Exception.

In Apprendi, the United States Supreme Court stated that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra,530 U.S. at p. 490) In Blakely, the Supreme Court clarified that, for Apprendi purposes, the statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Blakely, supra,542 U.S. at pp. 303-304.)

In Cunningham, the Supreme Court concluded that Californias DSL violates the constitutional principle embodied in the Apprendi rule by placing sentence-elevating factfinding within the judges province. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 860].) The court reasoned that, under the DSL, the middle term is the relevant statutory maximum because (1) an upper term sentence can be imposed only if the judge finds aggravating circumstances and (2) aggravating circumstances depend on facts found discretely and solely by the judge. (Id. at p. 868.) Furthermore, the court found, [b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.] (Ibid.)

The Cunningham court expressly disagreed with the California Supreme Courts decision in Black I, stating that [c]ontrary to the Black [I] courts holding, our decisions from Apprendi to [United States v.] Booker [(2005) 543 U.S. 220] point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 871].)

In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court recently addressed the situation where the trial court relies on more than one aggravating circumstance in imposing the upper term, some of which arguably implicate the defendants right to a jury trial under Cunningham and others of which do not. The Supreme Court concluded that 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. (Black II, supra, 41 Cal.4th at p. 812.)

The court in Black II also concluded that a defendants prior criminal history is an aggravating circumstance which typically should be sufficient to justify imposition of the upper term without implicating the defendants right to jury trial. The Black II court explained that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] (Black II, supra, 41 Cal.4th at p. 818.) Just like the defendant here, the defendant in Black II contended he was entitled to a jury trial on the aggravating circumstance of his prior criminal history because, even if the trial court properly may decide whether a defendant has suffered a prior conviction, a jury must determine whether such convictions are numerous . . . . Defendant, however, reads the prior conviction exception too narrowly. . . . [T]he Almendarez-Torres [v. United States (1998) 523 U.S. 224 (Almendarez-Torres)] exception . . . include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Id. at p. 819.)

The Supreme Court concluded in Black II that determining whether a defendant has suffered prior convictions, and whether those convictions are numerous . . . (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. (Black II, supra, 41 Cal.4th at pp. 819-820.) According to the court, where [t]he probation report reflected that defendant had been convicted of three misdemeanors . . . and that he also had suffered two felony convictions, such convictions were numerous for purposes of rule 4.421(b)(2). (Black II, supra, 41 Cal.4that p. 818.)

In this case, the trial court relied exclusively on aggravating factors that related to defendants extensive criminal record. (See Almendarez-Torres, supra, 523 U.S. at p. 244 [recidivism as a sentencing factor is not akin to an element of a crime which must be tried to a jury, in part because recidivism does not in any way   relate to the commission of the offense, but goes to the punishment only . . . . [Citation.]].) The court apparently obtained information regarding defendants criminal past from the probation report.[5] At no time during the sentencing hearing did defendant or counsel indicate that there were any inaccuracies in the probation report regarding defendants criminal history, or that the trial courts description of that history was incorrect in any respect.

One of the aggravating factors found by the trial court based on the probation report was that defendant had suffered numerous prior convictions. (Rule 4.421(b)(2).) The report shows that defendants record extends back to 1988 and includes 14 convictions. Under Black II, this information in the probation report was a sufficient basis, standing alone, for the trial court to impose the upper term.[6] (Black II, supra, 41 Cal.4th at pp. 812, 818.) Accordingly, we conclude that imposition of the aggravated term in this case did not violate defendants federal constitutional right to a jury trial under the Sixth Amendment or his right to due process under the Fourteenth Amendment as explicated in Blakely and Cunningham.[7]

III.             Harmless Error.

As the parties agree, [t]he denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless standard set forth in Chapman v. California (1967) 386 U.S. 18 . . . . (Sandoval, supra,41 Cal.4th at p. 838.) Under this standard, we must determine whether, beyond a reasonable doubt, that [a] jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstances had it been submitted to [that] jury. (Id. at p. 839.) We conclude that, even assuming there was Cunningham error, such error was harmless beyond a reasonable doubt because we have no doubt that a jury would have found that defendant had suffered numerous prior convictions (rule 4.421(b)(2)), and likely also would have found the other three aggravating factors cited by the trial court.

Neither defendant nor counsel asserted that any of the facts contained in the probation report were incorrect, or that a factual basis for the aggravating circumstances found by the trial court was lacking. Indeed, as part of his plea agreement, defendant admitted having suffered six of the prior convictions listed in that report. And defense counsel admitted defendant had a lengthy record which included convictions that were serious and violent. In mitigation, defense counsel simply argued that there were other mitigating circumstances. Given defendants extensive criminal record, we agree with the trial courts conclusion that this was not even a close case and that if an upper term were not warranted in this case, then theres hardly a case in which aggravated terms should be imposed.

Disposition

The judgment is affirmed.

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Richman, J.

We concur:

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Kline, P. J.

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Haerle, J.

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[1]All further statutory references are to the Penal Code unless otherwise indicated.

[2] The facts underlying defendants crimes in the three cases at issue are not relevant to this appeal because the trial court did not rely on those facts in selecting the upper term.

[3] All further rule references are to the California Rules of Court.

[4] The probation report did not list any circumstances in mitigation.

[5] Also in the appellate record are certified copies from the Department of Corrections of defendants criminal records. However, we cannot tell from the record whether the trial court reviewed these particular documents prior to sentencing defendant.

[6] Our conclusion that the trial court properly concluded defendant had numerous prior convictions remains the same if the four prison priors which defendant admitted and which the court used to add four years to defendants sentence are removed from consideration. (See  1170, subd. (b) [court may not impose an upper term using the fact of any enhancement upon which sentence is imposed]; Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 863] [A fact underlying an enhancement cannot do double duty; it cannot be used to impose an upper term sentence and, on top of that, an enhanced term].) Ten prior convictions would still be considered numerous according to Black II. (Black II, supra, 41 Cal.4th at p. 818 [three misdemeanor and two felony convictions were numerous].)

[7] We also note that defense counsel appears to have admitted the factual basis for at least two of the aggravating factors relied upon by the trial court. (See Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 865] [facts  admitted by the defendant  need not be submitted to a jury under the Apprendi rule].) During the sentencing hearing, defense counsel admitted that defendant does have a long record, that defendant had some violence in his record, and that his convictions are numerous and serious, but arguably decreasing in seriousness. These admissions are arguably sufficient to support the trial courts conclusions that there was evidence that defendant had engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)) and that defendant had numerous prior convictions (rule 4.421(b)(2)).