P. v. Torbett

Filed 12/19/08 P. v. Torbett CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

Citing the Supreme Courts decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), defendant and appellant Fred Oliver Torbett appeals from a jury conviction and seeks a remand to address the constitutionality of his sentence. Defendant contends the trial court violated his constitutional right to a jury trial when it imposed an upper term based on a fact that was not admitted or found true by a jury and/or on another fact that does not fit within the scope of the prior conviction exception to Cunningham.

FACTUAL AND PROCEDURAL BACKGROUND

At trial, which began on November 2, 2006, the prosecution presented testimony indicating defendant broke into his sons home on February 27, 2004. The son testified defendant stole a drill and a large glass bottle containing silver coins, which were given to him by his grandfather, worth approximately $800 to $1,000. On November 7, 2006, a jury found defendant guilty of first degree residential burglary (Pen. Code, 459)^[1]and not guilty of criminal threats ( 422). Defendant, who was released on his own recognizance during trial, disappeared while the jury was deliberating and was not present when the verdicts were read. The record indicates defendants next appearance in court was approximately one year later, on or about November 16, 2007.

On February 1, 2008, the trial court found two prior prison term allegations to be true. These convictions both fell within the meaning of section 667.5, subdivision (b), and were for receiving stolen property in 1994 ( 496, subd. (a)) and being a felon in possession of a firearm in 1995 ( 12021, subd. (a)(1)). The matter was then referred to the probation department for a presentencing report.

On March 24, 2008, defendant appeared for sentencing but the probation report was not ready. Defendant elected to waive the probation report and to be sentenced immediately.^[2] The court then heard argument on the appropriate sentence to be imposed. Defense counsel argued the court should stay or strike both prison priors and impose the low term of two years in state prison. According to defense counsel, the low term was appropriate because defendant was remorseful and the case was not a typical burglary of a strangers house but instead involved a family matter and ongoing disputes between defendant and his son. The prosecutor argued the middle term was appropriate based on defendants ongoing criminality, criminal history, and age, and because a family member was victimized as a result of the burglary offense. The trial court imposed the upper term of six years plus one year each for the prison priors, for a total of eight years in state prison.

DISCUSSION

In imposing the upper term, the trial court cited two aggravating and no mitigating circumstances. As the first aggravating factor, the trial court cited the circumstances of the burglary offense, because it was committed against a family member. The court concluded this violated a position of trust. Defendant argues the trial courts reliance on this factor violated his constitutional right to a jury trial as set forth in the Cunningham line of cases, because it was not admitted or found true by a jury. As the second aggravating factor, the trial court stated defendant didnt do so well on probation or parole. Defendant believes the trial courts reliance on this factor violated the Cunningham line of cases and our Supreme Courts recent decision in People v. Towne (2008) 44 Cal.4th 63 (Towne), because the record is insufficient to bring his performance on parole within the scope of the prior conviction exception to Cunningham, supra, 549 U.S. [127 S.Ct. 860].^[3] Even if it could be shown this factor does fall within the prior conviction exception to Cunningham, defendant contends the trial court could not rely on it, because it would violate the prohibition against the dual use of facts. In other words, because the trial court used these prior convictions to impose enhancements under section 667.5, subdivision (b), defendant argues the trial court could not use them again to aggravate the base term.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court held that a criminal defendants right to a jury trial is violated when a sentencing scheme allows a trial court to increase a criminal penalty beyond the prescribed statutory maximum based on a fact, other than a prior conviction, which was not admitted by the defendant or found true by a jury. Later, the United States Supreme court in Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856] considered the constitutionality of Californias determinate sentencing law (DSL) in light of the holding in Apprendi. Former section 1170, subdivision (b), provided that the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. In Cunningham, the United States Supreme Court concluded former section 1170, subdivision (b), violated the rule set forth in Apprendi, to the extent it created a presumption that rendered the middle term the statutory maximum and allowed trial courts to impose an aggravated upper prison term based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 549 U.S. at p. [127 S.Ct. at p. 860], italics added.)

In response to Cunningham, the Legislature amended the DSL effective March 30, 2007. (People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2 (Sandoval).) Because of these amendments, trial courts now have the discretion under section 1170, subdivision (b), to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Sandoval, at p. 847, citing 1170, subd. (b), as amended.) Rather, a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. (Sandoval, at p. 848.) In other words, these amendments to the DSL essentially eliminated the middle term as the statutory maximum absent aggravating factors. Our Supreme Court held it is constitutionally appropriate to apply the amended version of the DSL in all sentencing proceedings conducted after the effective date of the amendments, regardless of whether the offense was committed prior to the effective date of the amendments. (Sandoval, at pp. 845-857.) We are bound by the Sandoval decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Here, the record shows defendant was sentenced on March 24, 2008. It is therefore apparent defendant was not even sentenced under the sentencing scheme found unconstitutional by the Supreme Court in Cunningham. His reliance on Cunningham is therefore misplaced, and he has made no argument that his constitutional right to a jury trial or any other constitutional right was violated when the trial court applied the amended version of the DSL that was in effect at the time he was sentenced. As noted above, the upper term is now the statutory maximum under the amended version of section 1170, subdivision (b). As a result, the trial court was entitled to impose the upper term based on any significant aggravating factors unless an exception applied. The court did so by citing the circumstances of the current offense, which included a violation of a position of trust, as well as unsatisfactory performance on probation or parole. In doing so, the court did not violate defendants jury trial guarantee by engaging in constitutionally impermissible factfinding in order to impose a prison sentence beyond the prescribed statutory maximum.

Even if defendant could convince us Cunningham is relevant under the circumstances of his case, we have no reason to believe defendant would benefit in any way from a remand for resentencing. In response to Cunningham, our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 815, citing People v. Osband (1996) 13 Cal.4th 622, 728, concluded a remand for resentencing is unnecessary where the record shows that in imposing an upper term the trial court relied on a single aggravating factor, which meets constitutional standards, such as the defendants criminal history, even if the court also relied on other factors. (Black, at p. 816 [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].)

Our Supreme Court in Towne recently confirmed that a defendants unsatisfactory performance on parole falls within the prior conviction exception to Cunningham. (Towne, supra, 44 Cal.4th at p. 79.) Pursuant to Towne, prior unsatisfactory performance on probation or parole is an aggravating circumstance that falls within the prior conviction exception to Cunningham as long as the defendants record of prior convictions shows he was on probation or parole when he incurred a new conviction. (Towne, at p. 82.)

Here, defendant contends the record of his prior convictions, which was before the trial court when he was sentenced, was not clear enough to show unsatisfactory performance on probation or parole under Towne. However, defendant waived the preparation of a presentence report so the trial court was entitled to rely on the information before it at the time in question. Defendant made no objection when the trial court cited poor performance on probation or parole as a relevant aggravating factor. To the extent the record is unclear, we are certain it would be supplemented by the preparation of a presentence report if the case were remanded for resentencing. Based on the limited information in the record, it does appear defendant was on parole for the first prior conviction when he incurred his second prior conviction. The record of defendants first prior conviction indicates he was sentenced to two years in prison on April 29, 1994. The record then indicates defendant incurred the second prior conviction less than two years later on August 22, 1995.

In addition, contrary to defendants contention, the trial courts reliance on unsatisfactory performance on parole to impose an upper term would not violate the prohibition against the dual use of facts. This is because there is no dual use of facts when different facts, which happen to relate to the same underlying conviction, are used to aggravate and enhance a sentence . . . . (People v. Jones (1993) 5 Cal.4th 1142, 1166.) In other words, the trial court could properly use the fact that defendant served two prior prison terms to impose enhancements under section 667.5, subdivision (b), and then consider his performance on parole in at least one of these cases to decide whether to impose an upper term. (See, e.g., People v. Yim (2007) 152 Cal.App.4th 366, 369.)

We also note that the prosecutor argued defendants ongoing criminality was an aggravating factor to be considered in imposing an appropriate sentence. Once again, the record is unclear on this point, because defendant elected to be sentenced before a probation report could be completed. However, the record could certainly be supplemented by a presentence report if the case were remanded, and the record indicates defendant disappeared while the jury was deliberating in this case and did not make another appearance in the case until a year later on November 16, 2007. Therefore, the record suggests ongoing criminality could be another significant factor in aggravation that could be considered if a remand were necessary. In other words, on the record before us, a more favorable sentence on remand appears highly unlikely.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

GAUT

J.

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

^[2] [D]ue to a sudden family medical emergency, the probation officer requested a short continuance of two weeks to complete the sentencing report.

^[3] The People argue defendant forfeited his right to appeal the constitutionality of his sentence under the Cunningham line of cases because he failed to object on this ground in the trial court. However, defendants argument is that the trial court violated his constitutional right to a jury trial when it imposed the upper term. This issue is a pure question of constitutional law that does not necessarily depend on the facts of the particular case for resolution. Pursuant to our Supreme Courts decision in the case entitled In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K), such issues are not forfeited if the probationer fails to object in the trial court. We therefore address the merits of defendants arguments.