P. v. Wandick

Filed 9/19/07 P. v. Wandick CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur M. Lew, Judge, Affirmed.

Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund g. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Scott A. Taryle, and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Michael Wandick appeals from the judgment entered following his conviction by a jury on one count of assault with a firearm (Pen. Code, 245, subd. (a)(2))[1](count 1), one count of making a criminal threat ( 422) (count 2), and one count of possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 3), with special findings by the jury he had personally used a firearm in the commission of the offenses charged in counts one and two ( 12022.5). The trial court sentenced Wandick to an aggregate state prison term of eight years: On count 1 the court imposed an upper term of four years plus the middle term of four years for the firearm-use enhancement. On count 2 the court imposed the middle term of two years plus the middle term of four years for the firearm-use enhancement to run concurrently with the sentence on count 1. On count 3 the court imposed and stayed pursuant to section 654 the middle term of two years.

At the sentencing hearing, held on August 17, 2006, defense counsel urged the court to impose the lower term for both the aggravated assault and firearm-use enhancement, noting that all of Wandicks prior felony convictions were for nonviolent, theft-related crimes. The prosecutor, on the other hand, requested the court impose the middle term sentence for the substantive offense (three years) and the upper term sentence for the firearm enhancement (10 years), arguing Wandick had numerous prior convictions and had served six different prison sentences. The trial court concluded there were no mitigating factors and Wandicks prior criminal history was an aggravating factor, justifying imposition of the upper term sentence on the aggravated assault charge. (See Cal. Rules of Court, rule 4.421(b)(2) [defendants prior convictions as an adult are numerous].)

On appeal Wandick contends the trial courts imposition of the upper term sentence for assault with a firearm based on a factual determination made by the trial judge, not the jury, violated his federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely).[2]Wandick acknowledges the aggravating factor identified by the trial judge ‑‑ his numerous prior felony convictions ‑‑ is related to his recidivism; in Cunningham the United States Supreme Court reaffirmed its prior holdings that the trial court may increase the penalty for a crime based upon the defendants prior convictions without submitting that question to a jury (Cunningham, supra, 127 S.Ct. at p. 868; see Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] (Almendarez-Torres); Blakely, supra, 542 U.S. at p. 301); and, before Cunningham, this prior conviction exception to Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) was construed broadly by California appellate courts to apply not only to the fact of the prior convictions, but also to other issues relating to the defendants recidivism, including the existence of numerous or increasingly serious prior convictions. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [courts have held that no jury trial right exists on matters involving the more broadly framed issue of recidivism]; see also People v. McGee (2006) 38 Cal.4th 682, 706-707 [numerous state and federal court decisions have interpreted the Almendarez-Torres exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendants recidivism].) Nonetheless, Wandick argues the Almendarez-Torres prior conviction exception to the Sixth and Fourteenth Amendment jury trial requirement should be narrowly construed.[3]

While Wandicks appeal was pending in this court, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and expressly reaffirmed the pre-Cunningham appellate decisions broadly construing the Almendarez-Torres prior conviction exception. The Black II Court emphasized that recidivism is a traditional judicial sentencing consideration that need not be tried to the jury under the Sixth and Fourteen Amendments and concluded the defendants criminal history established an aggravating circumstance under California Rules of Court, rule 4.421(b)(2) ‑‑ defendants prior convictions . . . are numerous or of increasing seriousness ‑‑ that independently satisf[ies] Sixth Amendment requirements and render[s] him eligible for the upper term. (Black II, at p. 820.)

As was the case in Black II, Wandicks probation and sentencing report reflected his prior juvenile adjudication (for attempted robbery at age 17) and many adult convictions, including two misdemeanors in 1992 (taking a vehicle without the owners consent) (Veh. Code, 10851, subd. (a)) and 1994 (corporal injury to a spouse/cohabitant) ( 273.5, subd. (a)) and felonies in 1995 for burglary ( 459); in 1998 for receipt of stolen property ( 496, subd. (a)); and in 1999 for petty theft with a prior ( 666). These convictions are sufficiently numerous to satisfy California Rules of Court, rule 4.421(b)(2). (See Black II, supra, 41 Cal.4th at p. 818 [three misdemeanor and two felonies are numerous and of increasing seriousness]; People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].)

In sum, Wandicks criminal history, properly identified by the trial court as an aggravating factor, rendered him eligible for the upper term sentence imposed. Wandicks federal constitutional right to a jury trial was not violated by the trial courts sentencing decision.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

ZELON, J.

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[1] Statutory references are to the Penal Code unless otherwise indicated.

[2] In Cunningham, supra, 549 U.S. at p. ___ the United States Supreme Court disagreed with the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) and held Californias determinate sentencing law violates a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by authorizing the trial judge to make factual findings that subject a defendant to the possibility of an upper term sentence.

[3] The People argue Wandick forfeited his Blakely/Cunningham argument by not objecting on constitutional grounds to the trial courts imposition of the upper term sentence on count one. As discussed, Wandick was sentenced on August 17, 2006, more than a year after the California Supreme Court had upheld the constitutionality of Californias determinate sentencing law in Black I, supra, 35 Cal.4th 1238, and approximately six months before that decision was overruled by the United States Supreme Court in Cunningham. In People v. Sandoval (2007) 41 Cal.4th 825, the Supreme Court held, because any Blakely objection would have been futile during the post-Black I,pre-Cunningham interval,a defendant sentenced in that period who did not object to imposition of the upper term sentence does not forfeit his or her constitutional claim.