Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. PA058132 Ronald S. Coen, Judge
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Michael Joseph Curfman appeals from judgment following his conviction by jury of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)); driving under the influence causing injury (Veh. Code, § 23153, subd. (a)); driving with a blood alcohol content in excess of the legal limit and causing injury (Veh. Code, § 23153, subd. (b)); reckless driving with great bodily injury (Veh. Code, § 23104, subd. (b)); and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). The jury also found true allegations that appellant personally inflicted great bodily injury in the course of violating Vehicle Code section 23153, subdivisions (a) and (b). (§ 12022.7, subd. (a).) The jury acquitted appellant of murder. (§ 187, subd. (a).)
All statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant to the upper term of 10 years in state prison for manslaughter, imposed and stayed upper terms of 6 years for driving under the influence, 6 years for driving with a blood alcohol in excess of the legal limit, 3 years for each of the two enhancements, 3 years for reckless driving with great bodily injury, and 6 months in jail for driving with a suspended license. (§ 654.)
Appellant contends that the trial court violated ex post facto principles and his constitutional right to a jury trial when it imposed upper term sentences based on the fact that he was on probation at the time he committed the offenses. He also contends that if his claims are waived, then his counsel rendered ineffective assistance. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In a single car accident, appellant killed his passenger. His passenger had been his friend since they were12 years old. A year before the fatal accident, appellant had been convicted of misdemeanor driving under the influence. (Veh. Code, § 23152, subd. (a).) He was on probation and driving with a suspended license when he committed the present crimes. He had also been convicted twice previously of driving on a suspended license. One month before he committed the present crimes, appellant drove a car into a ravine after drinking alcohol. He withheld the cause of his injuries from hospital staff. He bought another car and continued to drive.
Appellant's crimes were committed in 2006, and he was sentenced in 2008. At sentencing, appellant's counsel conceded that the court had discretion to impose the upper term of 10 years for vehicular manslaughter, but argued that appellant was unlikely to ever drive again due to his own injuries. The trial court selected the upper term for each offense based upon the fact that appellant was on probation at the time the crimes were committed. The court stated, "I am guided by, and although it's no longer mandatory, California Rules of Court, rule 4.421, circumstances in aggravation, and rule 4.423 circumstances in mitigation. I find the fact that defendant was on probation for the same type of offense, albeit a misdemeanor, to be extremely aggravating, and I intend to set the high term on this matter." The fact that appellant was on probation at the time of the offenses is evident from the probation pre-sentencing report.
DISCUSSION
Appellant contends that the trial court violated ex post facto principles (U.S. Const., art. I, § 10, cl. 1) by sentencing him under the current version of section 1170, subdivision (b), which was enacted after he committed his crimes but before he was sentenced, and that the sentence violated his Sixth Amendment right to a jury trial as established in Cunningham v. California (2007) 549 U.S. 270,because the court imposed the upper term based on a fact not found true by a jury. We reject both contentions. Appellant's alternative contention that counsel rendered ineffective assistance also fails.
When appellant committed the present offenses in 2006, California's determinate sentencing scheme required the court to impose the middle of three specified statutory terms, unless it found that there were circumstances in aggravation or mitigation of the crime. (Former § 1170, subdivision (b); Cal. Rules of Court, rule 4.420(b).) In 2007, the United States Supreme Court determined that this scheme violated a defendant's right to jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by authorizing the trial judge, rather than a jury, to find the facts rendering a defendant eligible for an upper term sentence. (Cunningham, v. California, supra, 549 U.S. 270.) In response, the California Supreme Court applied a remedial interpretation to section 1170, making imposition of any one of the three specified terms discretionary. (People v. Sandoval (2007) 41 Cal.4th 825, 857.) The Legislature similarly amended section 1170. (Stats. 2007, ch. 3, § 2.)
In the present case it is evident from the record that the trial court was aware of these developments and correctly applied the judicially revised version of the statute that was in effect at the time the crimes were committed. Our Supreme Court has determined that retroactive application of this judicially revised statute does not violate ex post facto principles. (People v. Sandoval, supra, 41 Cal.4th at p. 857.)
The trial court did not violate appellant's right to a jury trial when it selected the upper term based on the judicially determined fact that appellant was on probation at the time he committed the offenses. The fact that a defendant was on probation at the time he committed the present offense may be found by a judge without a jury. (People v. Towne (2008) 44 Cal.4th 63, 82.) "[T]he federal constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstance that a defendant was on probation or parole at the time of the offense or has served a prior prison term." (Id. at p. 79.) The existence of only one aggravating factor that complied with Cunningham was required to render appellant eligible for the upper term of imprisonment. (People v. Black (2007) 41 Cal.4th 799, 813, 815-816.)
We recognize that the Towne court's statement on this question was not necessary to resolution of the case before it. As the Towne court explained: "Although it is not necessary to our resolution of the present case to address that question, we do so in order to ensure consistency in the application of the Almendarez-Torres [v. U.S., 1998, 523 U.S. 224] exception in the California appellate courts." (People v. Town, supra, 44 Cal.4th at pp. 76-77.) We decline appellant's invitation to disregard this guidance from the California Supreme Court in favor of contrary authority from the Ninth Circuit Court of Appeals. (Butler v. Curry (9th Cir. 2008) 528 F.3d 624, 645.)
Appellant's counsel did not forfeit his Sixth Amendment claim by failing to raise it in the trial court. (People v. Black, supra, 41 Cal.4th at pp. 810-812.) Appellant has demonstrated neither deficient performance of counsel nor prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 689.)
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.