P. v. Nelson

Filed 8/22/08 P. v. Nelson CA3

Opinion following rehearing

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Plumas)

----

Defendant Daniel Evan Nelson pleaded no contest to committing a lewd or lascivious act on a child (Pen. Code, 288, subd. (a)).^[1] On appeal, he contends the trial court imposed the upper term based on facts not submitted to a jury in violation of his Sixth and Fourteenth Amendment rights (Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham)). We shall affirm the judgment.

BACKGROUND

Defendant was charged in case No. 0532864 with three counts of committing a lewd or lascivious act on a child ( 288, subd. (a)). Count I was based on an incident occurring on December 8, 2005, and involving Jane Doe #1. Counts II and III were based on incidents occurring in July 2005, and involving Jane Doe #2 and Jane Doe #3. Four probation violation cases trailed this case.

As part of a plea agreement, defendant entered a plea of no contest to count I, and counts II and III were dismissed with a Harvey waiver.^[2] There were no promises as to sentence and defendant acknowledged his sentence would not exceed eight years (the upper term). Prior to entering the plea, defendant acknowledged that, as a consequence of the plea, he would be found in violation of his probation in the four trailing cases. The trial court accepted defendants no contest plea and, based on that plea, found defendant in violation of four separate grants of probation.

In its tentative ruling at sentencing, the trial court indicated it intended to deny probation and impose the upper term based on: (1) defendant was on four grants of probation at the time the offense was committed, (2) there were three separate victims, (3) the victims were particularly vulnerable, (4) defendant took advantage of a position of trust, and (5) defendants convictions as an adult are increasing in seriousness.

Defense counsel then argued at length for probation or a mitigated term.^[3] The bulk of his argument, which encompassed approximately 13 pages of the reporters transcript, focused on defendants need for rehabilitation over incarceration. Defense counsel argued that defendants offense was a less serious crime than other instances of the same type of crime. There is no digital or penile penetration of any kind here. The defendant was not armed, there is no report of injury, there is no report of monetary loss[] and there was no victim in court. He further argued, again at length, that defendant was not a predator or a danger to society, but rather, a bumbling drunk[.] He characterized defendants offense as alcohol-related and argued that defendant was not sophisticated, and needed rehabilitation, not incarceration.

During his lengthy argument, defense counsel mentioned, in a single sentence, that this was defendants first felony conviction and later mentioned, again in a single sentence, that defendant is the kind of young man without a serious criminal record for the court to take a chance with probation. Defense counsel also admitted that defendant had failed miserably on seven grants of probation over the previous five years.

The prosecutor countered by stating that defendants offense was not an alcohol offense[] but rather, defendant had committed sex offenses on three young girls. The prosecutor argued that the following factors in aggravation applied and justified the upper term: the victim was vulnerable, defendant took advantage of a position of trust, defendants convictions were numerous and of increasing seriousness, defendant was on probation at the time the offense was committed, and his prior performance on probation had been unsatisfactory. The prosecutor noted that the factor cited in the probation report -- that defendant was convicted of other crimes for which consecutive sentences could have been imposed -- did not apply. The court interjected its agreement.

Defendants criminal history included seven prior misdemeanor convictions: burglary in 2000, vandalism in 2001, forgery in 2003, driving under the influence in 2003, assault with a deadly weapon in 2003, resisting arrest in 2004, and drug possession in 2005. Defendant received probation and county jail time for each conviction, with the exception of the 2005 drug possession, for which he received Proposition 36 probation.

After counsels argument, the trial court then responded that it remained convinced that defendant was not a suitable candidate for probation. In explaining its reasoning, the trial court specifically addressed the sex offender and psychological reports, which had been emphasized by defense counsel during argument. With respect to the appropriate prison term, the trial court then stated, I believe its the aggravated term of eight years. I believe that theres escalating probationary terms, but more importantly is hes taken advantage of a position of trust on these three young girls, and based on that I think that the aggravated term of eight years is an appropriate sentence.

DISCUSSION

Defendant claims that imposition of the upper term violates the Sixth Amendment to the United States Constitution as interpreted by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); and Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856].

Apprendi 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. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a courts authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt of the

additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].) In Cunningham, the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence. Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point.)

However, 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. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)

Here, among the facts relied on by the trial court were that defendant was on four grants of probation at the time the offense was committed and that his convictions as an adult are increasing in seriousness. Defendant argues that, since the trial court did not repeat those reasons after counsels arguments on sentencing, the court did not rely on those facts. We disagree.

First, we note that the trial court did, in fact, restate the factor of defendants failed probationary terms when it imposed sentence (stating, theres escalating probationary terms). Second, the fact that the trial court chose to respond to defense counsels argument, rather than merely restate its comments made prior to counsels arguments, does not establish that the trial court abandoned its earlier reasoning for imposing the upper term.

There was certainly nothing in defense counsels argument that would have swayed the trial court to disregard its earlier conclusion that defendant was on four grants of probation at the time the offense was committed or that his convictions as an adult are increasing in seriousness. Indeed, defense counsel understandably admitted defendant was on four grants of probation and noted he had, in fact, failed on seven grants of probation in five years. Defense counsel did mention, in passing, that this was defendants first felony conviction and that defendant did not have a serious criminal record. However, defense counsel did not, and could not, suggest that, contrary to the trial courts earlier statement, the current serious felony was not more serious than his previous seven misdemeanors. In sum, the record does not support a conclusion that the trial court had been persuaded to abandon its previous reasoning.

Defendant was not entitled to a jury determination of his prior convictions before they could be used as an aggravating factor in imposing the upper term. The trial court found defendant had seven prior convictions and the current felony conviction was indisputably more serious that his previous misdemeanor convictions. Because this aggravating factor made defendant eligible for the upper term, the trial court did not violate defendants right to a jury trial in imposing the upper term. (Black II, supra, 41 Cal.4th 799, 816.)

Moreover, while only a single aggravating factor, found in accordance with the Apprendi/Blakely/Cunningham rule, is required, a second factor was properly found applicable in this case. The fact that defendant was on probation at the time of the offense had been admitted and adjudicated prior to sentencing. Prior to entering his plea, defendant personally acknowledged that would be found in violation of his four trailing probation cases by virtue of his plea. After entering his plea, defense counsel submitted the matter and the trial court found defendant in violation of his probation in all four cases. Thus, there was no Blakely error when the court later considered that fact in determining the appropriate term.

Defendants prior convictions, as well as his status on probation when he committed the crime, individually and collectively made him eligible for the upper term. Once the trial court made either of those findings, the Sixth Amendment permit[ted] the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, 41 Cal.4th at p. 813.)

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

SCOTLAND, P.J.

BUTZ , J.

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^[1] Further undesignated statutory references are to the Penal Code.

^[2]People v. Harvey (1979) 25 Cal.3d 754.

^[3] Defense counsel also presented several individuals, including defendant, to speak to the court in support of probation.