P. v. Sladariu

Filed 3/12/08 P. v. Sladariu CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

Having obtained a certificate of probable cause (Pen. Code, 1237.5^[1]), defendant Cornelius Sladariu appeals his sentence following his no contest plea and conviction of transporting methamphetamine (Health & Saf. Code, 11379), receiving stolen property ( 496), and failing to appear in court ( 1320). We shall reject defendants constitutional challenge to his upper term sentence. We shall nevertheless remand for resentencing due to improper use of prior prison terms as both aggravating

factors and enhancements. The People concede an error in presentence conduct credit.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged in three separate cases as follows:

Case number CM024312: Count One charged transportation/sale of methamphetamine (Health & Saf. Code,  11379, subd. (a)). Count Two charged possession of methamphetamine (Health & Saf. Code, 11378). Counts One and Two appended an allegation of prior prison terms ( 667.5, subd. (b)) based on three prior convictions. Count Three alleged driving under the influence of alcohol or drugs (misdemeanor DUI), with a prior conviction for the same offense (Veh. Code, 23152, subd. (a), 23540, 23546). Count Four alleged using and being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a)).

Case number CM024833: Count One charged receiving stolen property ( 496, subd. (a)), while released from custody on the narcotics case ( 12022.1). A prior prison term allegation was appended to Count One. Count Two alleged deceptive government document activity ( 529.5, subd. (a)) in unlawfully manufacturing, selling, offer for sale and transfer a document, not amounting to counterfeit, purporting to be and appearing to be a government-issued identification card and drivers license. Count Three alleged forgery ( 470, subd. (a)).

Case number CM024874: Count One alleged failure to appear

in court on May 25, 2006, in the narcotics case while released from custody on bail or own recognizance ( 1320, subd. (b); 12022.1). A prior prison term enhancement was also alleged ( 667.5, subd. (b)).

The facts as set forth in the probation report were that a California Highway Patrol officer found defendant unconscious or asleep at the wheel of a vehicle idling in a drainage ditch on the side of State Highway 99, around 10:00 p.m. on November 3, 2005. Defendant tested positive for methamphetamine. A search of his vehicle revealed 12.8 grams of methamphetamine, a digital scale, empty plastic baggies, jewelry, and cash. As to the second case, on April 30, 2006, an officer investigating a check forgery at a grocery store stopped a vehicle driven by defendant and found in the vehicle social security cards and drivers licenses bearing different names, and the purse of a woman who had reported it stolen. As to the third case, on May 25, 2006, defendant, while out on bail, failed to appear in court for a trial readiness conference in the narcotics case.

On August 8, 2006, defendant pled no contest as follows:

Case number CM024312: Counts One and Three - transportation^[2]of methamphetamine (Health & Saf. Code, 11379)

and driving under the influence of alcohol or drugs, with an admission by defendant as to a prior DUI conviction (Veh. Code, 23152, subd. (a), 23540, 23546). Defendant admitted two of the three prior prison terms ( 667.5, subd. (b)). The other counts and prior prison term allegation were dismissed.

Case number CM024833: Count One - receiving stolen property ( 496, subd. (a)). The other count and enhancement allegations were dismissed.

Case number CM024874: Count One - failing to appear in court ( 1320, subd. (b)). The enhancement allegation was stricken.

The dismissal of charges was pursuant to Harvey waivers (People v. Harvey (1979) 25 Cal.3d 754).

On October 3, 2006, the trial court sentenced defendant to a total of seven years, four months, as follows:

The court designated the narcotics offense (Health & Saf.

Code, 11379) as the principal term and imposed the upper term of four years because [on] the mitigation side, the defendants prior performance on parole was good. In aggravation the defendants priors are numerous,^[[3]]he has served prior prison terms. The Court find[s] that the circumstances in aggravation outweigh circumstances in mitigation. As to the misdemeanor DUI, the court sentenced defendant to a concurrent term of one year.

As to the other two felonies -- receiving stolen property and failure to appear in court -- the court imposed the middle term of two years for each (stating that aggravating circumstances did not outweigh mitigating circumstances) and stayed all but eight months (one-third the midterm) as to each.

The court imposed a one-year sentence for each of the two prior prison term enhancements.

The trial court issued a certificate of probable cause for defendant to challenge his sentence on appeal.

DISCUSSION

I. Upper Term

Defendant contends imposition of the upper term on the drug offense was improper because (1) Californias determinate sentencing law was held invalid by Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] due to the absence of a

jury trial of aggravating factors used to impose an upper term, and (2) the upper term was improperly supported by a factor (prior prison terms) which was also used for enhancement purposes. We shall reject defendants first point but agree with the second point.^[4]

The trial court gave two reasons for imposing the upper term: (1) numerous prior convictions; and (2) prior prison terms.

The first factor takes this case out of the Cunningham problem area.

Thus, the circumstance that a defendant has numerous prior convictions constitutes an aggravating sentencing factor supporting the upper term. (Cal. Rules of Court, rule 4.421(b)(2) (rule 4.421(b)).) The right to a jury trial does not apply to the fact of a prior conviction. (Cunningham,

supra, 549 U.S. __ [166 L.Ed.2d 856]; People v. Black (2007) 41 Cal.4th 799 (Black).)

The probation report showed three prior felony convictions. Three prior felony convictions are considered numerous for purposes of constituting an aggravating factor under rule 4.421(b)(2). (Black, supra, 41 Cal.4th at p. 818, citing People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].)

The validity of the first factor alone -- numerous prior convictions -- takes this case outside of the problem area identified by the line of high court decisions culminating with Cunningham. (Black, supra, 41 Cal.4th 799.) Thus, 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 . . . justified based upon the defendants record of prior convictions. (Id. at p. 816.) [I]f one aggravating circumstance has been established in accordance with the constitutional requirements . . . , the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Id. at p. 813.)

We conclude defendants case does not present a Cunningham problem.

Defendant next contends that imposition of the upper term

based in part on his prior prison terms was unauthorized because the trial court also used the prior prison terms to impose two one-year enhancements under section 667.5. We agree.

Thus, as the People agree, the two prior prison terms which were used for section 667.5 enhancements cannot also be used to impose the upper term. ( 1170, subd. (b) [[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]; People v. Hurley (1983) 144 Cal.App.3d 706, 709.)

The People nevertheless claim there was a third prior prison term which was dismissed and which therefore can be used to support the upper term. However, the People do not demonstrate a third prison term (or that the trial court used it) but merely rely on the allegation of a third term.

The pleading alleged defendant had served prison terms for three prior convictions:

(1) a conviction on April 4, 2001, for driving recklessly to evade a police officer (Veh. Code, 2800.2);

(2) a conviction on May 11, 1995, for another Vehicle Code section 2800.2 violation; and

(3) a conviction on April 4, 2001 (the same date as (1) but a different case number), for failing to appear in court ( 1320.5).

When the court reviewed the pleadings before taking defendants plea, defense counsel said, Legally there [are] only two prior prison terms. There was no discussion of this

point, but defendant admitted only two prior prison terms, and the third was stricken.

The People do not show the trial court used or could have used a third prison term for sentencing purposes. Our own review of the record shows the probation report, in its recommendation of the upper term, said defendant has served two prior prison terms. The probation report included a CRIMINAL RECORD SUMMARY showing defendant was sentenced to prison for the three prior convictions. As to the two convictions on the same date (April 4, 2001), the summary showed defendant was sentenced to five years in prison for the Vehicle Code violation and a consecutive term of eight months in prison for the failure to appear ( 1320.5). However, the summary also showed that defendant was paroled on May 7, 2002, a mere 11 months later.

Thus, the record does not show the trial court used or could have used a third prior prison term for sentencing purposes.

We conclude the trial court erred in using, as an aggravating factor, prior prison terms that were also used for section 667.5 enhancements.

Discounting the improper factor of prior prison terms, we are left with the trial courts finding of one aggravating factor (numerous prior convictions) and one mitigating factor (defendants prior performance on parole was good).

When the trial court gives both proper and improper reasons

for a sentencing choice, the reviewing court will set aside the judgment only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492; People v. Weaver (2007) 149 Cal.App.4th 1301, 1325.)

The People argue the error was harmless in this case because the trial court also found defendant had a pattern of regular and increasingly serious criminal conduct.^[5] However, the court mentioned this factor only in explaining why the court would have denied probation, had defendant been eligible for probation. The court did not mention this factor in imposing the upper term. The court could have done so. (Black, supra, 41 Cal.4th at p. 817 [the same fact may be used both to deny probation and to support imposition of an upper term sentence]; rule 4.421(b) [prior convictions of increasing seriousness constitutes an aggravating factor].) The determination whether prior convictions are of increasing seriousness for sentencing purposes is a matter for the court, not a jury. (Black, supra,

41 Cal.4th at pp. 819-820.)

Moreover, in sentencing defendant on the other two felonies (receiving stolen property and failure to appear in court), for which the prior prison term allegations had been stricken, the court imposed the midterm rather than the upper term, stating the Court finds the appropriate term to be the mid term. Circumstances in aggravation not outweighing circumstances in mitigation.

Given these circumstances, we cannot say with reasonable probability that the court would impose the upper term sentence if it disregarded the improper factor of prior prison terms.

Accordingly, we shall remand to the trial court for resentencing.

II. Presentence Conduct Credits

Defendant argues his conduct credits ( 4019) for time spent in jail before sentencing were miscalculated, and he is entitled to an additional four days. The People agree. We accept the Peoples concession. The trial court shall make that adjustment upon remand.

DISPOSITION

Defendants convictions are affirmed. Defendants sentence is vacated. The case is remanded for resentencing and for correction of the abstract of judgment as noted in footnote 2 and in part II of the opinion and a certified copy of the corrected abstract of judgment is to be provided to the

Department of Corrections and Rehabilitation.

SIMS , Acting P.J.

We concur:

DAVIS , J.

MORRISON , J.

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^[1]Undesignated statutory references are to the Penal Code.

^[2]The abstract of judgment says sale, but upon remand should be corrected to read transportation. Thus, the statute addresses both sale and transportation. (Health & Saf. Code, 11379 [every person who transports, imports into this state, sells, furnishes, administers, or gives away . . . any controlled substance . . . shall be punished . . . .]) The reporters transcript shows the trial court asked defense counsel if defendant would be entering a no contest plea to sale of methamphetamine (and other specified charges), to which defense counsel said yes. The court asked defendant how he pled to the charges. Defendant said, No contest. The probation report showed defendant was in the drivers seat of a vehicle containing the drugs in a ditch on Highway 99. At sentencing, the court stated, the matter is before the Court as a result of pleas to transportation -- I know [defense counsel] pointed that out before on count one [of the narcotics case]. Although it states sale of a controlled substance, its transportation. Defense counsel said: If the Court will make that amendment. Nevertheless, the abstract of judgment says sale. The court shall make the correction (to transportation) upon remand.

^[3]The probation report in its recommendation of the upper term, says defendant had three prior felony convictions.

^[4]We agree with defendant that his contention is not forfeited for failure to raise it in the trial court. Defense counsel said in the trial court: Just to make a record, because the case law is still unclear, I would object to factors in aggravation being imposed. This objection appears to relate only to Cunningham, because the law was not unclear about the impropriety of dual use of facts. However, the People do not argue defendant forfeited his contention by failing to object in the trial court, and defendant relies on the rule that an unauthorized sentence can be corrected on appeal despite the defendants failure to object in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354-355; People v. Franz (2001) 88 Cal.App.4th 1426, 1450.)

^[5]We note an apparent inconsistency in the trial courts determinations of (1) a pattern of regular and increasingly serious criminal conduct, and (2) good performance on parole. We presume the courts reference to good performance referred to the more recent parole, rather than the parole in the 1995 case. Defendants criminal record summary showed no arrests between his May 2002 parole and his arrest on the current drug charges in November 2005.