P. v. Walker

Filed 2/7/08 P. v. Walker 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Vince Allen Walker appeals the sentence imposed following his guilty plea to possession of a controlled substance (methamphetamine) (Health & Saf. Code,  11377, subd. (a)), and admission of two prior prison term allegations (Pen. Code,  667.5, subd. (b)).^[1] Appellant contends the trial court violated the dual use of facts prohibition in using prior felony convictions to impose the upper term; his upper term sentence violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham)and People v. Black (2007) 41 Cal.4th 799 (Black); and Black and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval)were wrongly decided.

Background^[2]

On October 6, 2006, appellant entered his guilty plea.

On November 3, 2006, the court denied probation and sentenced appellant to the three-year upper term after concluding the aggravating factors outweighed those in mitigation. In doing so the court stated, By way of aggravation, hes engaged in violent conduct which indicates a serious danger to society. He has the criminal record Ive outlined. He was on parole when the crime was committed. His prior performance on probation and parole was unsatisfactory. And that understates it, . . . it was abysmal because of the repeated violations. The methamphetamine being in crystalline form is also a factor in aggravation. The court found as a mitigating factor that appellant voluntarily acknowledged wrongdoing at an early stage of the criminal process.

After stating its imposition of the upper term on the charged offense, the court stated: It has been charged and found true that the defendant has prior to the offense charged in the complaint served two separate prison terms within the meaning of Penal Code section 667.5, subdivision (b). [] The court not having relied upon that fact in selecting the base term now specifically orders that two additional years be imposed and that the additional term of two years be served consecutively to the sentence imposed for the base term. The court suspended the proceedings and referred appellant for evaluation pursuant to Welfare and Institutions Code section 3051.

On June 1, 2007, a hearing was held for lifting of the suspension of the sentence previously imposed and for award of credits. Defendants counsel noted that subsequent to appellants plea, the United States Supreme Court decided Cunningham, and argued that appellant should only receive a midterm sentence. Later, the court then asked if there was any further argument on whether the previously imposed sentence should be modified, and defense counsel solely reiterated his objection based on Cunningham. The court stated, In aggravation the court concludes that the upper term is justified simply by virtue of his prior record. That prior record shows that he suffered three misdemeanor convictions from 1986 to 1999 for violations of Penal Code section 12031, driving under the influence, and being under the influence of a controlled substance. It shows that, in 1992, he was convicted of a felony violation of Penal Code section 245[, subdivision] (a)(1); and, in the year 2000, it shows that he was convicted of possession of methamphetamine for sale. [] I recognized that at the time of the original sentencing the court wasnt sentencing the defendant in view of Cunningham. But Im satisfied that the prior record of criminal convictions alone is sufficient to justify the upper term. Thereafter, the court ordered execution of sentence.

Discussion

I. The Court Did Not Violate The Dual Use of Facts Proscription

Appellant contends the court violated the dual use of facts prohibition by relying on his prior convictions to enhance his sentence under Penal Code section 667.5, subdivision (b), and to impose the upper term.

Penal Code section 1170, subdivision (b), provides, in relevant part, [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. California Rules of Court, rule 4.420(c) provides, in relevant part, To comply with section 1170[, subdivision] (b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.

Appellant concedes that, at the November 3, 2006 sentencing hearing, the court expressly disclaimed that its base term sentence was imposed in reliance on appellants two prior prison terms. However, he argues that at the post-Cunningham June 1, 2007 sentencing hearing, the court expressly stated, Im satisfied that the prior record of criminal convictions alone is sufficient to justify the upper term, and the statement violated the dual use proscription.

The People respond that appellant has forfeited this dual use of facts claim of error because at sentencing he objected to imposition of the upper term solely under Cunningham. Alternatively, the People argue that the courts reliance on appellants criminal record was a reference to appellants convictions, not his prior prison terms. They rely on People v. Hurley (1983) 144 Cal.App.3d 706, 709 (construing a former version of Pen. Code,  1170, subd. (b)), which states: A trial court may use the fact of prior conviction, even where it underlies a prior prison term enhancement, to help show numerous convictions under [California Rules of Court, former] rule 421(b)(2) because this is not the fact on which enhancement is based. The fact of a [Penal Code] section 667.5 enhancement transcends the mere fact of conviction.

We agree that in imposing the upper term the court properly relied on appellants prior convictions, not on his prior prison terms. While the court at one point referred to appellants prior record, it is clear from reading the courts statements in full that it was imposing the upper term on the basis of appellants prior convictionsnot on his prior prison terms.

II. The Courts Upper Term Sentence Did Not Violate Cunningham

Appellant next contends the courts imposition of the upper term based on the factors recited by the court at the November 3, 2006 hearing violated Cunningham. He asserts that because the criminal-record factor violated the dual use proscription and was, therefore, not a proper basis for imposition of the upper term, all of the other factors relied on by the court violated his right to jury trial.

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, 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.] (Sandoval, supra, 41 Cal.4th at pp. 836-837.) Black construed the Apprendi prior conviction exception broadly to include, 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. (Black, supra, 41 Cal.4th at p. 819.) 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. (Black, at p. 813.)

The trial court properly based its imposition of the upper term sentence on appellants record of prior convictions, a factor that alone was sufficient to justify the upper term based on appellants recidivism.

III. Stare Decisis Prohibits Our Review of Black and Sandoval

Finally, appellant contends that Black and Sandoval were wrongly decided and deprive defendants of their Sixth Amendment rights to jury trial. He concedes that this court is bound by principles of stare decisis to follow these California Supreme Court cases (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but makes the argument to preserve the point for further review.

Disposition

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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^[1] Pursuant to a plea bargain, a prior strike allegation (Pen. Code,  667, subds. (b)-(i)) and a misdemeanor Penal Code section 415 charge were dismissed.

^[2] Since this appeal concerns only sentencing issues, a recitation of background facts is unnecessary.