P. v. Trujillo 12/13/07 CA4/2

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State: California

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

Docket No: E040053A

Case Date: 02/27/2008

Preview:Filed 12/13/07 P. v. Trujillo CA4/2 Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. PEDRO J. TRUJILLO, Defendant and Appellant. E040053 (Super.Ct.No. RIF125191) OPINION ON REHEARING

APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Affirmed with directions. Kevin D. Sheehy, 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, Senior Assistant Attorney General, and David

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Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Pedro Trujillo of possession of a weapon by a prisoner in violation of Penal Code section 4502, subdivision (a),1 and possession of drug paraphernalia by a prisoner in violation of section 4573.8. Defendant admitted five prior prison term allegations within the meaning of section 667.5, subdivision (b). Defendant was given a four-year upper term sentence on count 1, the violation of section 4502, subdivision (a). On appeal, he contends this upper term sentence violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), because the trial court, in reaching its upper term sentencing decision, made factual findings that aggravating factors existed and then weighed them against a mitigating factor. Defendant was given a consecutive2 term (one-third the middle term) of eight months for count 2, and one year for each of the five prior prison term enhancements, for a total sentence of nine years eight months. I. FACTS Defendant was imprisoned at the California Rehabilitation Center in Norco. A correctional sergeant testified that, on April 7, 2005, he conducted a random search of

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All further statutory references are to the Penal Code unless otherwise indicated.

As discussed below, defendant contends that the trial court actually intended to impose a concurrent sentence on count 2.

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defendant's dormitory with other officers. As two officers went past him, defendant reached down and grabbed a paper bag. He was searched and a manufactured syringe was found in the bag. A manufactured weapon was subsequently found in defendant's laundry bag. II. SENTENCING Defendant was sentenced on February 27, 2006, almost a year before Cunningham was decided. The trial court considered the probation report and a statement in mitigation filed by defendant. The trial court relied on four factors: (1) the manner in which the crime was carried out indicated planning, sophistication, or professionalism (Cal. Rules of Court, rule 4.421(a)(8));3 (2) defendant had been unsuccessful in every attempt at rehabilitation and probation; (3) defendant was not taking responsibility for his conduct; and (4) defendant's prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)). It therefore selected an upper term sentence on count 1. Defendant's notice of appeal was filed on February 28, 2006. On appeal, defendant contends the upper term sentence violates Cunningham. III. BACKGROUND On January 22, 2007, the Supreme Court decided that California's determinate sentencing law (DSL) violates a defendant's right to a trial by jury because it authorizes the trial judge, not the jury, to find facts that expose defendant to an upper term sentence. The court explained: "As this Court's decisions instruct, the Federal Constitution's jury3

All further references to rules are to the California Rules of Court.

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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.] `The relevant "statutory maximum,"' this Court has clarified, `is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.' [Citation.] In petitioner's case, the jury's verdict alone limited the permissible sentence to 12 years. Additional factfinding by the trial judge, however, yielded an upper term sentence of 16 years. The California Court of Appeal affirmed the harsher sentence. We reverse that disposition because the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial." (Cunningham, supra, 127 S.Ct. at p. 860.) Cunningham also cites Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). In that case, the court held that the "statutory maximum" is the maximum sentence the court could impose without making any additional factual findings. (Ibid.) Cunningham extended to California's DSL the principles enunciated in Jones v. United States (1999) 526 U.S. 227 [119 S.Ct. 1215, 143 L.Ed.2d 311] (Jones) and Apprendi v. New Jersey (2000) 530 U.S. 466, 476 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi). In Jones, the Supreme Court held that, "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be

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charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." (Jones, supra, 526 U.S. at p. 243, fn. 6.) Apprendi states: "In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: `[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.' [Citations.]" (Apprendi, supra, 530 U.S. at p. 490.) The prior conviction exception is based on Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] (Almendarez-Torres). Cunningham reaffirmed the prior conviction exception but did not directly discuss it. Thus, under the Almendarez-Torres exception to the Apprendi rule, a sentence in excess of the statutory maximum may be imposed based on a judge's finding that a defendant had a prior conviction. In People v. McGee (2006) 38 Cal.4th 682, our Supreme Court considered "(1) the breadth or scope of the so-called Almendarez-Torres exception applicable to an increase in sentence based upon a defendant's recidivism, and (2) the specific nature of the inquiry

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that is required to be made under California law in this matter." (Id. at p. 702.) The court concluded: "As noted ante, the Court of Appeal in the present case narrowly construed the Almendarez-Torres exception for recidivist conduct as preserved by Apprendi. In so holding, however, we believe the Court of Appeal improperly minimized the distinction between sentence enhancements that require factfinding related to the circumstance of the current offense, such as whether a defendant acted with the intent necessary to establish a `hate crime'--a task identified by Apprendi as one for the jury--and the examination of court records pertaining to a defendant's prior conviction to determine the nature or basis of the conviction--a task to which Apprendi did not speak and `the type of inquiry that judges traditionally perform as part of the sentencing function.' [Citation.]" (Id. at pp. 708-709.) The court in People v. McGee, supra, 38 Cal.4th 682 specifically approved cases such as People v. Thomas (2001) 91 Cal.App.4th 212, which held that: "In terms of recidivism findings that enhance a sentence and are unrelated to the elements of a crime, Almendarez-Torres is the controlling due process authority. Almendarez-Torres does not require full due process treatment of an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. Apprendi did not overrule Almendarez-Torres. The language relied upon by defendant in Apprendi, `[o]ther than the fact of a prior conviction,' refers broadly to recidivism enhancements which include section 667.5 prior prison term allegations." (Id. at pp. 222-223.)

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Cunningham rejected the California Supreme Court's defense of the DSL in People v. Black (2005) 35 Cal.4th 1238 (Black I). (Cunningham, supra, 127 S.Ct. at pp. 863-871.) It therefore found that California's DSL violates a defendant's right to a jury trial on any fact, other than a prior conviction, which increases the sentence. (Id. at p. 860.) Following its decision in Cunningham, the United States Supreme Court remanded Black I to the state Supreme Court for reconsideration in light of Cunningham. After the parties had fully briefed this appeal, the state Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II). In Black II, the court reviewed Apprendi and Blakely in light of Cunningham, and concluded that, "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits 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, at p. 813.) The court then recognized that, under the former DSL, the presence of a single aggravating factor is sufficient to make the defendant eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at p. 813, citing People v. Osband (1996) 13 Cal.4th 622, 728; see

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