P. v. Sherman

Filed 9/26/07 P. v. Sherman CA1/4

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This case is before us on remand from the United States Supreme Court for further consideration in light of that courts decision in Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856, 868-871 (Cunningham). The parties have provided supplemental briefing addressing both Cunningham and the California Supreme Courts recent interpretation of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). After further consideration in light of both Cunningham and Black II, we affirm the judgment and sentence.

background

Defendant John Paul Sherman pleaded guilty to hit and run drunk driving and related offenses. A superior court judge sentenced defendant to an upper term upon finding aggravating facts or circumstances related to the offense and offender. Defendant appealed, claiming that his sentence was unconstitutional because the sentence was founded on facts not tried and determined by a jury. (U.S. Const., 6th Amend.) In our original decision issued on September 14, 2006, we rejected defendants claim on the authority of our Supreme Court, which had held that the federal constitutional right to a jury trial on fact-finding does not apply to judge-imposed upper term prison terms under Californias sentencing law. (People v. Black (2005) 35 Cal.4th 1238, 1254-1264 (Black I); Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Several months after our decision was filed, the United States Supreme Court held that an upper term may not be imposed by a judge unless an aggravating fact used in sentencing is proved to the jury beyond a reasonable doubt or is established by the defendants admissions or prior convictions. (Cunningham, supra, 127 S.Ct. at pp. 868-871).) The federal high court vacated Black I, upon which we had relied, and remanded it to the California Supreme Court for further consideration in light of Cunningham. (Black v. California(2007) ___ U.S. ___, 127 S.Ct. 1210.) The United States Supreme Court also vacated our decision and remanded this case for further consideration in light of Cunningham.

The California Supreme Court recently considered the application of Cunningham to California sentencing, and held that imposition of an upper term sentence does not violate a defendants right to a jury trial where at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term. (Black II, supra, 41 Cal.4th at pp. 805-806.) Consistent with the Sixth Amendment, there are two types of aggravating facts that may be used to impose an upper term without a jury determination of those facts. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the 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. (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) The Sixth Amendment does not include the right to a jury determination on the fact that prior convictions occurred, or other related issues that may be determined by examining the records of the prior convictions. (Black II, supra, at p. 819 & fn. 8.)

In Black II, the court affirmed an upper term sentence where a sentencing brief and probation report listed, as an aggravating circumstance, that defendant Blacks prior convictions were numerous or of increasing seriousness. (Black II, supra, 41 Cal.4that p. 818 & fn. 7; Cal. Rules of Court, rule 4.421(b)(2).) As will be seen, this same aggravating fact made defendant Sherman eligible for the upper term, and thus defeats his appellate challenge to the sentence imposed.

facts and Trial
court proceedings

A. Case No. CR033793

Testimony at the preliminary hearing established that defendant was driving while extremely intoxicated on April 27, 2003. He had been embroiled in a verbal altercation with other men, who then rammed defendants pick-up truck with their own vehicle. Defendant fled in his truck at a high rate of speed and, while rounding a corner, spun out and struck a pedestrian. The pedestrian was knocked to the ground, suffered a concussion, and sustained lacerations to her hand when it struck, and broke through, the trucks side window. Defendant did not stop to aid the pedestrian, and did not report the accident. Instead, defendant went to a residential garage to change a flat tire on his battered truck. The police found him there, reek[ing] of alcohol and too drunk to stand up. Defendant was arrested and made several attempts to escape the police vehicle while being transported to jail. Defendant also refused to have his blood alcohol level tested. The police checked the status of defendants drivers license and found that it was suspended or revoked.

The People charged defendant with drunk driving with injury to another (Veh. Code,  23153, subd. (a)); hit and run driving with injury to another (Veh. Code,  20001, subd. (a)); attempted escape from police custody (Pen. Code,  4530, subd. (b)); and driving with a suspended or revoked license (Veh. Code,  14601.2, subd. (a)). In connection with count one for drunk driving with injury, the People also alleged that defendant had prior convictions from January 2000 for drunk driving (Veh. Code,  23152, subd. (a)) and alcohol-related reckless driving (Veh. Code,  23103, 23103.5). It was additionally alleged, on count fours charge of driving with a suspended license, that defendant had two prior convictions from 2001 for driving with a suspended license.

In June 2004, defendant pleaded guilty to counts one (drunk driving with injury) and two (hit and run driving with injury), and admitted the prior drunk driving and reckless driving convictions alleged on count one. The remaining counts were dismissed, with defendants agreement that the trial court could consider the facts underlying the dismissed counts in sentencing. (See People v. Harvey (1979) 25 Cal.3d 754, 758 [sentencing court may consider facts underlying dismissed counts with defendants agreement].) The negotiated plea did not promise a particular sentence, but the court advised defendant of the maximum possible sentence and explained that the sentencing range was two to four years on count one, and sixteen months to three years on count two. The court also advised defendant that his sentence would be based, in part, on a probation department report and recommendation. Defendants counsel stipulated that the preliminary hearing transcript could be received as a factual basis for the plea.

B. Case No. CR902302

In a separate case, defendant was charged with drunk driving (and other offenses) committed on June 9, 2004, less than two months after the hit and run incident. (Veh. Code,  23152, subd. (a).) Defendant pleaded guilty to drunk driving and admitted three prior convictions for drunk driving and reckless driving. As in the earlier case, the court advised defendant of the sentencing range and that the court would review the probation departments report when selecting a sentence.

C. Sentencing

The probation department submitted a sentencing report that recommended imposition of the upper term of four years on count one (drunk driving with injury), and a concurrent upper term of three years on count two (hit and run driving with injury) in case No. CR033793. (Pen. Code,  18; Veh. Code,  20001, subd. (b)(2), 23153, subd. (a), 23566, subd. (a).) In case No. CR902302, the probation officer recommended a consecutive eight month term.

The probation officers report listed four circumstances in aggravation of the hit and run crime: defendant engaged in violent conduct which indicates a serious danger to society; defendants prior convictions as an adult are numerous; defendant was on summary probation when the crime was committed; and defendants prior performance on summary probation was unsatisfactory. (Cal. Rules of Court, rule 4.421 (b)(1), (b)(2), (b)(4), (b)(5).) The report listed eight prior convictions for drunk driving, reckless driving, driving with a suspended license, public intoxication, resisting a peace officer, attempted escape from custody, battery, and inflicting corporal injury on a cohabitant.

Two circumstances were listed in mitigation: defendant committed the hit and run driving offense under almost exculpat[ory] circumstances because it appears he was fleeing from a motorist trying to ram defendants truck, and defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process by pleading guilty. (Cal. Rules of Court, rule 4.423 (a)(4), (b)(3).) The probation officer noted, however, that the second mitigating circumstance did not carry much weight because the guilty plea was a bargained exchange for the dismissal of other charges.

At the sentencing hearing in August 2005, the trial court noted that it takes these sentencing matters very seriously and had spent some time reading the probation officers report, during which the court made two pages of notes in the course of its review and consideration of the report. The court adopted the probation officers recommendation and imposed the upper term on both counts in the hit and run case upon finding that defendants conduct indicates a serious danger to society, defendants prior convictions are numerous, defendant was on probation when the crime was committed, and defendants prior performance on probation was unsatisfactory. (Cal. Rules of Court, rule 4.421 (b)(1), (b)(2), (b)(4), (b)(5).) The court made the terms on the two counts in the hit and run case concurrent (No. CR033793), and imposed a consecutive eight month term for the later drunk driving conviction (No. CR902302), for an aggregate prison term of four years, eight months.

discussion

As noted above, our high court has held that imposition of an upper term sentence does not violate a defendants right to a jury trial where at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made [defendant] eligible for the upper term. (Black II, supra, 41 Cal.4th at pp. 805-806.) The right to a jury trial under the Sixth Amendment does not apply to the fact that prior convictions occurred, or other related issues that may be determined by examining the records of prior convictions. (Id. at p. 819 & fn. 8.)

The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.] (Black II, supra,41 Cal.4th at pp. 819-820.) In Black II, the California Supreme Court affirmed an upper term sentence where a sentencing brief and probation report listed, as an aggravating circumstance, that defendant Blacks prior convictions were numerous or of increasing seriousness, and the probation report provided an account of defendants five convictions. (Id. at p. 818 & fn. 7.)

This case is indistinguishable from Black II. As in Black II, defendant here is eligible for the upper term by virtue of his numerous prior convictions. The probation report relied upon by the sentencing court listed eight prior convictions, far more than are necessary for a finding of numerosity. (See Black II, supra, 41 Cal.4th at p. 818 [upholding numerosity finding for five convictions and citing case upholding numerosity finding for three convictions].) In pleading guilty in the trial court, defendant admitted two prior convictions, and does not deny on appeal his long record of prior convictions.[1] Defendants only argument against the application of Black II is that the California Supreme Courts reasoning in that case was incorrect. Defendant makes the argument to preserve the issue for federal review. As defendant acknowledges, we are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)

Iv. disposition

We affirm the judgment and sentence.

_________________________

Sepulveda, J.

We concur:

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Ruvolo, P.J.

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Reardon, J.

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[1] We need not address whether aggravating facts sufficient to support defendants sentence were established by defendants admissions in entering his guilty pleas. We affirm defendants sentence on the independent ground that aggravating facts were established by defendants documented record of prior convictions, consistent with the Sixth Amendment.