Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR055789
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
Defendant Richard Lyle Sanderson, Jr. appeals from a sentence imposed by the trial court pursuant to a negotiated plea agreement. He contends that imposition of an upper term violated his Sixth Amendment right to a jury trial. He also argues the trial court erred by using the same aggravating factors to impose upper terms for both his offense and an enhancement. We find no Sixth Amendment violation, but we remand for resentencing due to conceded error in the court’s dual use of aggravating factors.
Background
On July 19, 2006, Sanderson pled guilty to voluntary manslaughter with use of a firearm (Pen. Code, § 192, subd. (a); count 1) and first degree robbery (§§ 211, 212.5, subd. (a); count 2). As to count one, he admitted that he personally used a firearm in committing the crime. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1).)
All statutory references are to the Penal Code unless otherwise indicated.
The trial court imposed an upper term (11 years) for the voluntary manslaughter conviction; an upper term (10 years) for the firearm use enhancement; and a consecutive 16-month term for the robbery conviction, for a total sentence of 22 years four months.
In imposing the upper terms for the manslaughter conviction and the enhancement, the court cited the following circumstances in aggravation: Sanderson had engaged in violent conduct that indicates a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)); Sanderson’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness (rule 4.421(b)(2)); Sanderson was on probation when the crimes were committed (rule 4.421(b)(4)); and Sanderson’s prior performance on probation was unsatisfactory (rule 4.421(b)(5)). The court found that the aggravating circumstances outweighed what it identified as the single mitigating circumstance, Sanderson’s early acknowledgement of culpability (rule 4.423(b)(3)), which the court characterized as questionable.
All rule references are to the California Rules of Court.
Discussion
I. Cunningham Issues
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court concluded California’s determinate sentencing law violates the Sixth Amendment because it “allocates to judges sole authority to find facts permitting the imposition of an upper term sentence.” (Cunningham, at p. ___ [127 S.Ct. at p. 870].) In Black, our Supreme Court noted that in Blakely v. Washington (2004) 542 U.S. 296, the high court “explicitly recognized the legitimate role of ‘judicial factfinding’ in indeterminate sentencing, in which the judge may ‘implicitly rule on those facts he deems important to the exercise of his sentencing discretion.’ ” (People v. Black (2007) 41 Cal.4th 799, 812-813 (Black).) Accordingly, the Court 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.” (Id. at p. 813.) The Court added that “[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ ” (Ibid.) Because “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s determinate sentencing law, “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Black, at p. 813.)
Black noted that the United States Supreme Court “consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. . . . ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ ” (Black, supra, 41 Cal.4th at p. 818 [citations omitted].) The Court rejected a narrow interpretation of the recidivism exception. The exception applies not only to the fact of the prior conviction, but also to “other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) The Court held that the Black defendant’s criminal history alone rendered him eligible for the upper term sentence, stating “defendant’s criminal history and the jury’s finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence . . . .” (Id. at p. 820.)
In imposing the upper term in the present case, the trial court relied in part on findings that the defendant was on probation when he committed the offenses and his prior performance on probation was poor. These are aggravating circumstances listed in rule 4.421. The trial court findings, which could be made on the basis of court records alone, fall within the scope of the recidivism exception. (See Black, supra, 41 Cal.4th at p. 819; People v. Yim (2007) 152 Cal.App.4th 366, 370-371 [defendant’s status as a parolee and poor performance on parole].) Because Sanderson’s probationary status at the time he committed the offenses rendered him eligible for the upper term, he “was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence.” (Black, at p. 820 [emphasis added].)
Sanderson maintains that sustained juvenile delinquency petitions are not prior convictions within the meaning of the recidivism exception and there was insufficient evidence that his prior convictions were numerous or of increasing seriousness. Although he amplifies this argument in his supplemental brief, we need not address it because the court relied on other aggravating circumstances that fall within the recidivism exception as interpreted by Black: the fact that Sanderson was on probation at the time he committed the offenses and that his prior performance on probation was poor. Those findings, which satisfied Sixth Amendment requirements, rendered him eligible for the upper term. The court’s reliance on other aggravating factors while exercising its discretion to set the term of imprisonment was not a Sixth Amendment violation.
Sanderson next argues his sentence cannot be affirmed because the probation-related aggravating circumstances alone did not necessarily outweigh the mitigating circumstance. However, Black held that if one aggravating factor was found true in compliance with Sixth Amendment requirements, a court’s reliance on other findings and its weighing of aggravating and mitigating circumstances do not implicate the Sixth Amendment. On appeal, Sanderson raises only a Sixth Amendment challenge to his sentence, and thus he has forfeited a challenge to the court’s exercise of discretion. In any event, the court found that four aggravating circumstances outweighed what it identified as a single doubtful mitigating circumstance. It acted well within its discretion in imposing upper terms.
Sanderson suggests the Sixth Amendment requires recidivism factors to be pleaded in the charging document even if they do not have to be admitted or found true by a jury beyond a reasonable doubt. He cites language in Apprendi v. New Jersey explaining that, historically, facts increasing the punishment for a crime had to be expressly charged in the indictment as an essential element of the crime. (Apprendi v. New Jersey (2000) 530 U.S. 466, 480.) He then quotes Justice Thomas’s concurring opinion, which took the position that any fact increasing the punishment for a crime is an element of the crime, including the fact of a prior conviction. (Id. at p. 501 (conc. opn. of Thomas, J.).) When read in context, however, it becomes apparent that Justice Thomas was merely explaining why he believed he had erred when he joined the majority in Almendarez-Torres v. United States (1998) 523 U.S. 224, which held that the fact of a prior conviction is not an element of the crime that must be charged in the indictment. (Id. at pp. 520-521 (conc. opn. of Thomas, J.); Almendarez-Torres, pp. 226-227, 239.) Almendarez-Torres remains controlling law. (Black, supra, 41 Cal.4th at p. 818.) The California Supreme Court has interpreted the Almendarez-Torres exception to apply generally to recidivism factors that can be determined on the basis of court records alone. (Black, at p. 819.) Under controlling California Supreme Court precedent, such factors are not subject to the Sixth Amendment requirement that the elements of a crime be pleaded in the charging document.
Sanderson’s supplemental brief also takes the position that the application of Black to his sentence, which was imposed before that decision reinterpreted California sentencing laws, violates his rights under the ex post facto clause of the United States Constitution. But he has not shown that any change in California statutes has been applied in his case. In any event, the California Supreme Court rejected a similar ex post facto argument in People v. Sandoval (2007) 41 Cal.4th 825, 857.
II. Other Sentencing Issues
Sanderson argues his constitutional rights were violated because there was no rational connection between the recidivism aggravating factors relied upon by the court and the factual circumstances surrounding his use of a firearm. He cites no legal authority, and we find no such authority, for the proposition that the constitution requires a rational connection between aggravating sentencing factors and the circumstances of a crime before an upper term may be imposed for a sentencing enhancement. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [appellate court may deny claim on appeal that is unsupported by legal argument applying legal principles to the particular facts of the case on appeal].)
However, Sanderson argues that the trial court erred by relying on the same aggravating circumstances in imposing upper terms for the manslaughter conviction and firearm-use enhancement. The People conceded at oral argument that this dual use of facts was error, but claim that Sanderson forfeited this issue by failing to raise it below. Nor can Sanderson demonstrate that his trial attorney was ineffective in failing to object, the People assert, since prejudice cannot be shown.
The probation report identified three circumstances in aggravation and one mitigating circumstance relative to the manslaughter conviction and two different aggravating circumstances and no mitigating circumstance with respect to the enhancement. Ultimately, the trial judge relied upon four aggravating factors: Sanderson had engaged in violent conduct posing a serious danger to society; his prior convictions and juvenile adjudications were numerous and of increasing seriousness; he was on probation when the present crimes were committed; and his prior performance on probation was unsatisfactory, particularly while he was a juvenile. Whether or not the victim was an aggressor, and thus a factor in mitigation, was open to debate. The court also observed: “[it] does appear that under 4.423(b)(3) Mr. Sanderson did acknowledge to some degree culpability in the matter at a relatively early stage, but that the degree of culpability could be debated.” Later, the court made reference to “the previously stated single if there is circumstance in mitigation.” The court then concluded that the “circumstances in aggravation do outweigh any in mitigation” and announced that it was imposing an upper term for the manslaughter conviction and “pursuant to the same rules and circumstances in aggravation and mitigation” an upper term for the enhancement. Sanderson’s trial counsel did not object to the court’s dual use of aggravating factors.
The proposed aggravating circumstances for the manslaughter conviction were: the crime involved great violence and great bodily harm resulting in death (rule 4.421(a)(1)); the defendant has engaged in violent conduct posing a serious danger to society (rule 4.421(b)(1)); and the defendant’s prior convictions and sustained juvenile adjudications were numerous and of increasing seriousness (rule 4.421(b)(2)). The mitigating circumstance was that the victim was an aggressor or provoker of the incident (rule 4.423(a)(2).
As we have mentioned, the People concede the trial court erred by relying on the same aggravating factors to impose upper terms for both the manslaughter conviction and the enhancement. All four of the aggravating factors have a common origin— Sanderson’s adult and juvenile criminal history. According to the court, several potential factors in mitigation exist. If the trial court had not relied upon the same aggravating factors to impose an upper term for both the offense and its enhancement, it is reasonably probable the court would not have concluded that the aggravating factors outweighed the mitigating factors as to both. A timely objection might well have significantly reduced Sanderson’s sentence, and trial counsel’s failure to do so amounted to deficient performance. (People v. Frye (1998) 18 Cal.4th 894, 979-980.) We perceive no possible tactical reason to decline to object. (Ibid.) Because of the reasonable probability of a different result, Sanderson was prejudiced by his attorney’s failure to act and we must remand for resentencing.
Disposition
The judgment is vacated and the matter is remanded for resentencing.
We concur. JONES, P.J., SIMONS, J.
The proposed aggravating circumstances for the enhancement were that the defendant was on several grants of probation when the crime was committed (rule 4.421(b)(4)) and his prior performance on probation would appear to have been unsatisfactory given his arrest and conviction in the present matter (rule 4.421(b)(5)).