Opinion
A113345
2-21-2007
THE PEOPLE, Plaintiff and Respondent, v. ERIK JAMES RICHARD CROUCH, Defendant and Appellant.
INTRODUCTION
Erik James Richard Crouch appeals from the judgment of the Marin County Superior Court revoking his probation and imposing an aggravated prison sentence upon finding that he had violated the terms of his probation for corporal injury on a spouse. (Pen. Code, § 273.5, subd. (a).) We affirm.
PROCEDURAL BACKGROUND
It is unnecessary to relate the facts underlying the original conviction and the probation revocation, in order to address appellants claim on appeal. Both involved domestic violence against the same victim.
On August 8, 2003, appellant pleaded guilty to one count of corporal injury on a spouse/cohabitant (Pen. Code, § 273.5, subd. (a).) The court placed appellant on probation for five years on the condition that he serve one year in county jail.
On October 26, 2005, a petition to revoke probation was filed, alleging that appellant had assaulted the same victim on August 14, 2005. On March 3, 2006, over appellants objection under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the court refused to reinstate probation and sentenced appellant to the aggravated term of four years in state prison, citing his substantial criminal history as the primary reason for the sentence.
DISCUSSION
Appellant contends that imposition of the upper term violates his federal constitutional rights to due process and a jury trial as recognized in Blakely, supra, 542 U.S. 296.) He argues the trial court violated Blakely and committed constitutional error by imposing the upper term based on an aggravating factor that was not supported by jury findings or admitted by him.
A. The law
The controlling principle was announced by the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which states: "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." (Id. at p. 490.)
In Blakely, supra, 542 U.S. 296, the Supreme Court held that a Washington State court violated the Apprendi rule and denied a criminal defendant his constitutional right to a jury trial by increasing that defendants sentence for second-degree kidnapping from the "standard range" of 49 to 53 months to 90 months based on the trial courts finding that the defendant acted with " `deliberate cruelty. " (Blakely, supra, 542 U.S. at pp. 303-304.) In reaching this conclusion, the court clarified that, for Apprendi purposes, the " `statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Ibid.)
Blakely raised concerns about the constitutionality of Californias Determinate Sentencing Law (DSL). Under our DSL, the maximum sentence a judge may impose for a conviction without making any additional findings is the middle term. Penal Code section 1170, subdivision (b), states that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." Furthermore, California Rules of Court, rule 4.420(b), states that "[s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation." If, pursuant to Blakely, the statutory maximum sentence under Californias DSL is the middle term, then an upper term sentence based on aggravating circumstances, other than the fact of a prior conviction, that are found by the trial court rather than by a jury would violate the Apprendi rule.
The California Supreme Court attempted to resolve the constitutional issue in People v. Black (2005) 35 Cal.4th 1238 (Black). The Black court held that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial." (Id. at p. 1244.) The court reasoned that, under Californias sentencing system, "the upper term is the `statutory maximum and a trial courts imposition of an upper term sentence does not violate a defendants right to a jury trial under the principles set forth in Apprendi, Blakely, and [United States v.] Booker [(2005) 543 U.S 220 (Booker)]." (Black, at p. 1254.)
However, the United States Supreme Court recently found that Californias DSL does violate the constitutional principle embodied in the Apprendi rule. (Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 2007 U.S. LEXIS 1324] (Cunningham).) Cunningham held that the DSL, "by placing sentence-elevating factfinding within the judges province, violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (2007 U.S. LEXIS 1324 at p. 11.) The court reasoned that, under the DSL, the middle term—not the upper term—is the relevant statutory maximum because (1) an upper term sentence can be imposed only if the judge finds aggravating circumstances, and (2) aggravating circumstances "depend on facts found discretely and solely by the judge." (Id. at p. 35.) Furthermore, the court found, "[b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, . . . the DSL 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.]" (Id. at pp. 35-36.)
The Cunningham court expressly disagreed with the California Supreme Courts decision in Black, supra, 35 Cal.4th 1238, stating that "[c]ontrary to the Black courts holding, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, 2007 U.S. LEXIS 1342 at p. 44.)
B. Application
In the present case, appellants counsel argued that mitigating and aggravating factors were balanced and also objected to the upper term based on Blakely. Immediately thereafter, the court revoked appellants probation and sentenced him to the aggravated term, stating: "[A]ll of the factors in aggravation and mitigation considered, the Court finds that the upper term is the appropriate term particularly in view of your substantial history preceding the charge for which you have been convicted in this case of violent offenses. Thats the biggest factor and most important factor." Clearly the court was referring to appellants history of prior convictions.
Although stating generally that it had considered the aggravating and mitigating factors, the court relied upon appellants "substantial history" of violent offenses preceding the charge as the preeminent factor warranting the aggravated term. Indeed, it was the only factor expressly relied upon by the court. Appellant argues that he did not admit that he had a " `substantial history " and that there was "no documentation of appellants `substantial history. " We disagree that there was no documentation supporting the courts finding. The probation report prepared before appellants 2003 sentencing hearing, which was part of the record in this action revoking probation, detailed appellants previous convictions, including: two prior convictions for assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), as well as convictions for battery (Pen. Code, §§ 242, 243, subd. (a)), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), petty theft (Pen. Code, § 488), disorderly conduct (Pen. Code, § 647, subd. (f)), and fighting in public (Pen. Code, § 415, subd. (1)). The 2006 probation violation report prepared in connection with the instant probation revocation petition also relates: "The defendant has had three reported incidents of violence against the victim while on this grant of Probation and is on misdemeanor Probation in Contra Costa County for domestic violence against the same victim." At no time during the sentencing hearing did appellant or counsel indicate there were any inaccuracies in these reports, which in any event, were objectively verifiable.
The requirement that a fact that increases a sentence beyond the statutory maximum must be found by a jury does not apply to the fact of a prior conviction. (Almendarez-Torres v. United States (1998) 523 U.S. 224; Apprendi, supra, 530 U.S. at pp. 488, 490; Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 2007 U.S. LEXIS 1324 at pp. 35-36.) This prior conviction exception to the Apprendi rule has been construed broadly to apply not just to the fact of the prior conviction, but to other issues relating to the defendants recidivism. (See, e.g., People v. Thomas (2001) 91 Cal.App.4th 212, 216-223.) However, the law in this area is not settled; extrinsic facts relating to a recidivist aggravating circumstance may well implicate Apprendi.
In our view, the factor relied upon by the court to impose the upper term clearly fell within the prior conviction exception to the Apprendi rule. Further, the prior conviction aggravating factor did not in any way "`relate to the commission of the offense, but goes to the punishment only . . . ." (Almendarez-Torrez v. United States, supra, 523 U.S. at p. 244, italics omitted.) Therefore, this factor did not need to be supported by jury findings.
The same could be said for the defendants status as a probationer, a fact that can also be established by a review of the court record relating to the prior offense. However, the trial court did not specifically rely on this factor in imposing the upper term and therefore we do not rely upon it.
Accordingly, we conclude that imposition of the aggravated term in this case did not violate appellants federal constitutional right to a jury trial under the Sixth Amendment or his right to due process under the Fourteenth Amendment as explicated in Blakely, supra, 542 U.S. 296 and Cunningham, supra, 2007 U.S. LEXIS 1324.
DISPOSITION
The judgment is affirmed.
We concur:
Haerle, J.
Richman, J.