P. v. Lee 4/18/07 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C052852

Case Date: 06/28/2007

Preview:Filed 4/18/07

P. v. Lee CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, Plaintiff and Respondent, v. CALVIN EARL LEE, Defendant and Appellant. C052852 (Super. Ct. No. CM022501)

Defendant Calvin Earl Lee pled guilty to possession of methamphetamine, admitted he had served three prior prison terms, and was placed on probation pursuant to Proposition 36. Over the course of the next several months, he admitted four separate probation violations. Consequently, the trial court

revoked defendant's probation and sentenced him to the upper term of six years in state prison, due to defendant's prior felony convictions and related factors.

1

On appeal, defendant contends (1) the imposition of the upper term violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham), and (2) the trial court impermissibly used the fact that defendant had served prior prison terms to both enhance and aggravate his sentence. shall affirm the judgment. DISCUSSION I 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 For this purpose, the statutory maximum is We

L.Ed.2d at p. 455].)

the maximum sentence a court could impose based solely on facts reflected by a jury's verdict or admitted by the defendant; thus, when a court's authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely,

supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].) Accordingly, in Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], 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' 2

sentence," California's determinate sentencing law "violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Ibid., overruling People v. Black (2005)

35 Cal.4th 1238 on this point, vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36].) Here, in imposing the upper term, the trial court cited the following aggravating factors: defendant's three prior felony

convictions; his three prior prison terms; his status on parole at the time he committed the present offense; and his prior parole violations. As we will explain, the court's consideration of these

aggravating factors that were not submitted to a jury did not run afoul of the Sixth Amendment to the United States Constitution. As pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment jury-trial guarantee does not apply to prior convictions that are used to impose greater punishment. (E.g., Cunningham,

supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) The reasons for the exemption of prior convictions from the scope of the jury trial requirement for increased sentences are (1) the fact of a prior conviction "`does not relate to the commission of the offense'" for which the defendant is being sentenced (Apprendi, supra, 530 U.S. at p. 496 [147 L.Ed.2d at p. 458]), and (2) "the certainty that procedural safeguards attached to any `fact' of prior conviction . . . mitigate[s] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a `fact' increasing punishment beyond the maximum of the statutory range." L.Ed.2d at p. 454, fn. omitted.) 3 (Id. at p. 488 [147

It follows that the prior

conviction exception applies not only to the fact of a prior conviction, but also to "an issue of recidivism which enhances a sentence and is unrelated to an element of a crime." v. Thomas (2001) 91 Cal.App.4th 212, 223.) (People

Therefore, "`the fact

of a prior conviction,' and related facts . . . may be judicially found at sentencing." (U.S. v. Cordero (5th Cir. 2006) 465 F.3d For example, the trial court may

626, 632-633, fns. omitted.)

determine and rely on the defendant's probation or parole status to impose the upper term. (Cf. United States v. Fagans (2d Cir.

2005) 406 F.3d 138, 141-42; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 ["the `prior conviction' exception extends to `subsidiary findings' such as whether a defendant was under court supervision when he or she committed a subsequent crime"].) Thus, it was proper for the trial court to impose the upper term not only because of defendant's prior convictions, but also because he had served prior prison terms and was on parole when he committed the present offense--all of which were aggravating factors that did not have to be submitted to a jury. In any event, we conclude beyond a reasonable doubt that the court would have imposed the upper term based solely on the aggravating fact of defendant having had three prior convictions. (People v. Osband (1996) 13 Cal.4th 622, 728 [one valid factor is sufficient to support the upper term].)

4

II Defendant also complains that the trial court used the same fact--defendant had served prior prison terms--to both enhance his sentence under Penal Code section 667.5 and impose the upper term. Generally, a court is prohibited from using a fact to both impose an aggravated term and enhance that sentence.

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