P. v. Jones

Filed 12/15/08 P. v. Jones 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Jules E. Fleuret, Judge. Affirmed.

Paul R. Ward, 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, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

On April 26, 2006, defendant and appellant Troy Lamont Jones entered a guilty plea to one count of possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)), a lesser included offense to the charge of transporting cocaine (Health & Saf. Code, 11352, subd. (a)). In exchange, the trial court dismissed two other counts of the felony complaint, and struck allegations of prior convictions and failure to remain free of custody for five years following a prison term. At a sentencing hearing on October 20, 2006, the trial court suspended imposition of sentence and placed defendant on formal probation for three years.

Just two months later, in January 2007, a petition to revoke probation was filed; it alleged that defendant failed to attend any drug treatment program. Defendant admitted the probation violation. Probation was revoked and reinstated in late May 2007.

At a review hearing on August 30, 2007, the trial court found defendant was not amenable to treatment because of his continued failure to attend a treatment program. The court revoked defendants probation and sentenced him to the upper term of three years in state prison.

On appeal, defendant contends that the upper term sentence violated his rights under the Fourteenth and Sixth Amendments of the Constitution. For the reasons set forth below, we shall affirm the judgment.^[1]

II

The Trial Courts Imposition of the Upper Term Did Not Violate

Defendants Constitutional Rights

Defendant contends that the courts imposition of the upper term sentence violated his Fourteenth Amendment right to due process and his Sixth Amendment rights to the assistance of counsel and a jury trial on all facts necessary to punishment, under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We disagree.

A. The Sentencing Hearing

At the time of sentencing, the trial court stated it was basing its selection of the upper term on the following:

[D]efendant was on parole at the time of this offense and this offense was a violation of parole. He was violating parole just being in this county where he was. He ran from the deputies and resisted at time of arrest. He has denied committing the offense to a probation officer, and yet the drugs were found on his person. So hes been unsuccessful on parole. His prior performance on probation or parole has not been satisfactory by any stretch of the imagination, and hes continued to commit felonies.

In addition to those factors, it appears most significantly that [defendant] has numerous prior felony convictions for which he served time in state prison after probation violations and parole violations. We have possession for sale of cocaine base in 1991. We have [a conviction for a violation of Vehicle Code section] 10851 in 92. We have a [conviction for violation of Vehicle Code section] 2800 in 94. We have a burglary which Im assuming is a second degree burg[lary] in 94. So in each of those he was committed to state prison.

So he has four prior prison commitments, and based on his prior record alone, it appears to the Court along with the other evidence that there is sufficient basis for imposing the aggravated term. Taken with the . . . other facts and the reasons that the Court stated, it is the Courts view that there is ample basis for imposing the aggravated term. So that is what Im going to do.

B. The Court Properly Imposed the Upper Term

Defendants have a constitutional right to have the jury, not the trial judge, decide all facts increasing the penalty for a crime beyond the prescribed statutory maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely).)

In Cunningham, supra,549 U.S. at p. ___ [127 S.Ct. at p. 868], the United States Supreme Court overruled People v. Black (2005) 35 Cal.4th 1238 and held that the middle term in Californias determinate sentencing law was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, 127 S.Ct. at p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998)523 U.S. 224 and affirmed in Apprendi: [T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] (Cunningham, 127 S.Ct. at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488, 490.)^[2] The court explained Californias determinate sentencing law violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.] (Cunningham, 127 S.Ct. at p. 868.) Almendarez-Torres, supra, 523 U.S. 224, stated: [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. . . . [T]o hold that the Constitution requires that recidivism be deemed an element of petitioners offense would mark an abrupt departure from a longstanding tradition of treating recidivism as go[ing] to the punishment only. [Citation.] (Id. at pp. 243-244.)

Courts in California and in other jurisdictions have construed Apprendi, as requiring a jury trial except as to matters relating to recidivism. [Citation.] (People v. Yim (2007) 152 Cal.App.4th 366, 370.) This exception for recidivism is not limited to the fact of a defendants prior conviction, but includes the defendants status as a probationer or parolee at the time the current offense was committed and the existence of numerous or increasingly serious prior convictions. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1514.)

In 2007, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II). There, the court held that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Id. at p. 813, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception.^[3] (Black II, at pp. 819‑820.)

Here, as discussed above, the trial court found that defendants prior convictions were numerous, and his prior performances on parole and/or probation were unsatisfactory. The trial courts determination that defendants criminal history supported an upper term sentence falls squarely within the recidivism exception to Apprendi, Blakely, and Cunningham. Defendant was not entitled to have this issue presented to a jury or found true beyond a reasonable doubt. (Black II, supra, 41 Cal.4th at p. 818.)

In his reply brief, defendant argues that the Supreme Courts reasoning in [Black II] is deeply flawed. However, in light of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Supreme Court decisions . . . are binding upon and must be followed by all the state courts of California), this argument lacks merit.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P. J.

KING

J.

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^[1] We need not recite the facts surrounding this case, as they are unnecessary to our discussion of the issue raised by defendant.

^[2] In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 860-861].)

^[3] The prior conviction exception to Apprendi, Blakely, and Cunningham recognized in Almendarez-Torres v. United States, supra, 523 U.S. at page 243, has yet to be disapproved by the United States Supreme Court.