Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS050988A
Bamattre-Manoukian, ACTING P.J.
Defendant Kelvin Donnel Williams was sentenced to seven years eight months in state prison, after the trial court found that he had violated his probation. The court also imposed a $2,800 restitution fine, and a suspended parole revocation fine in the same amount. On appeal, defendant contends that the court’s imposition of the upper term on one count violated his right to a jury trial. He further contends that the amount of the ordered restitution and parole revocation fines must be reduced and that the abstract of judgment needs to be amended to correct clerical errors. We find that defendant’s Sixth Amendment right to a jury trial was not violated by imposition of the upper term. We further find that the restitution and parole revocation fines must be reduced, and that clerical error in the abstract of judgment must be corrected. We will affirm the judgment as amended.
BACKGROUND
Around 8:44 p.m. on February 13, 2005, witnesses reported seeing defendant standing over a woman in the middle of a road in Seaside, hitting her. When officers arrived in the area, they found the woman with blood on the front of her face and her shirt, with swelling around her eyes and to her left cheek, and with a cut on the bridge of her nose. She told officers that defendant, her boyfriend, had hit her. Officers located defendant in a nearby bar and the woman identified defendant as her assailant.
This summary of defendant’s offenses is taken from the probation report.
Defendant was charged by information filed March 18, 2005, with felony false imprisonment (Pen. Code, § 236), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The information further alleged that defendant had served four prior prison terms (§ 667.5, subd. (b)).
Further statutory references are to the Penal Code unless otherwise specified.
On June 2, 2005, defendant signed a form titled “waiver of rights; plea of guilty/no contest.” On the form, defendant stated that he would be pleading guilty/no contest to both new charges and admitting three prior prison term allegations, with the understanding that “the maximum possible sentence [he] could receive for the offense(s)” is seven years eight months in prison. Defendant’s counsel informed the court that defendant was accepting a court offer to suspend execution of that sentence and place defendant on probation. The prosecutor informed the court that “[t]he People disagreed with” the court’s offer. Before accepting defendant’s plea, the court stated: “If you enter a guilty or no-contest plea today, the indicated disposition is that you would be sentenced to a term of seven years, eight months in custody. That sentence would be suspended and you would be placed on felony probation. Do you understand?” Defendant stated that he did, and entered a guilty plea to both counts of the information and admitted having served three prior prison terms.
On July 15, 2005, the court sentenced defendant to seven years eight months in state prison, suspended execution of the sentence, and placed defendant on probation for four years. Conditions of probation included that he obey all laws, that he not possess or use any controlled substances, and that he complete a one-year counseling class on domestic violence. The court also imposed a $20 court security fee and a $400 restitution fine.
On April 24, 2006, the probation officer filed a petition pursuant to section 1203.2, seeking revocation of defendant’s probation. The petition alleged that defendant was in violation of his probation by failing to obey all laws, by being terminated from the batterer’s program, by visiting a bar, and by failing to report to the probation officer. The court summarily revoked defendant’s probation on May 11, 2006.
The probation revocation hearing was held on August 10, 2006, together with the preliminary hearing on new charges. Kathy Fisher, defendant’s probation officer, testified that one of the conditions of defendant’s probation was that he complete a certified batterer’s treatment program. He was referred to the Community Human Service Program, but he had three scheduled absences and one unexcused absence, so he was terminated from the program on February 20, 2006, for having excessive absences. The program does not have any record showing that defendant re-enrolled in the program.
Fisher last saw defendant on November 21, 2005, although he was to report every month in person. He did not appear on December 19, 2005, as scheduled. He came in on February 23, 2006, but she was out of the office ill that day, and she has not seen him since that time. He made a few phone calls to her, and she informed him on April 5, 2006, that he was in violation of his probation.
Kim Cummings, defendant’s fiancée, testified that she accompanied defendant each time he visited the probation department. If his probation officer was not there, he wrote a note to her and left it with the receptionist. She does not recall the exact dates that they went there, but they did so several times.
On July 17, 2006, Cummings and defendant were staying at the apartment in Seaside of a friend of hers when they got into an argument. Defendant called her at the apartment while he was under the influence of crack cocaine, and Cummings said that he needed to get into a drug program. Defendant admitted that he needed help. Cummings told him to return her Sony PlayStation, and hung up on him. Defendant arrived at the residence about 11:00 a.m., under the influence and angry. Neither Cummings nor her friend invited defendant inside. He said, “ ‘I’m not playing. You think I’m playing? I’m not playing.’ ” He pushed the door open, breaking the door frame. Cummings asked him to leave and he did, after a few minutes. At no time was she afraid for her own or anybody else’s safety. She did not tell the responding officer that she was in fear of her life, only that she was nervous.
Seaside Police Officer Barry Pasquarosa testified that on July 17, 2006, he responded to Smith’s report of a burglary in progress at her apartment, and spoke to Cummings, who appeared to be frightened. Cummings said that there had been a phone call, and then defendant broke through the door. During the phone call, defendant had threatened to have her beaten, to have her car blown up, and to shoot her. Pasquarosa obtained two photographs of defendant from the police station and returned to the apartment. Cummings had calmed down, and said that she was not afraid of defendant, but she still appeared worried that defendant would return. She told the officer that during his phone call defendant had also said that if anybody went to the police, they would be dealt with. She said that when she asked defendant to return her Sony PlayStation, defendant said that he “would, basically, shove it up her ass.” After defendant broke through the door, he aggressively charged toward her, but he left when she asked him to. Defendant was subsequently arrested by other officers.
The court found that defendant violated his probation by using narcotics, by making criminal threats, by trespassing, by not reporting to probation on December 19, 2005, and by not completing his domestic violence class. The court also held defendant to answer on a charge of making criminal threats (§ 422), but dismissed a residential burglary charge.
On September 29, 2006, the court imposed the previously suspended sentence of seven years eight months. The court also ordered defendant to pay a $20 court security fee, “a restitution fine in the amount of $200 times the 7 years in custody times the 2 felony counts,” and a suspended parole revocation fine in the same amount.
DISCUSSION
Imposition of the Upper Term
At sentencing on July 15, 2005, the prosecutor stated that she opposed the indicated sentence of a grant of probation and asked the court to sentence defendant to state prison for five years four months. Defense counsel stated that, if the court intended to not impose the indicated sentence, defendant would ask to withdraw his plea. After the court stated that it intended to impose the indicated sentence, the prosecutor stated: “If the Court is intending to get to seven years, eight months, the only way you can do that is if you found the aggravated term on Count 2, the 245 which is four years, impose a third of the midterm consecutive on the 236. What you’d be doing is – you’d be having to weigh the factors in aggravation versus mitigation and find that factors in aggravation outweigh those in mitigation, which they do. And then you would impose four years as the principal term. Then you would impose two years for the 236 but then that running consecutive would translate into or convert to eight months and then you would impose three years for the – each one of the 667.5(b) separately for a total of seven years, eight months.” The court responded, “That’s what I’ll do.”
After the court suspended execution of sentence, placed defendant on probation, and outlined the terms and conditions of probation, the prosecutor asked the court to make findings regarding “the factors in aggravation versus mitigation for the imposition of the upper term.” The court responded: “Sir, as I previously just stated, you have a serious record in terms of your past, your past criminal convictions, the facts in this case are aggravated facts alleged that you punched and kicked the victim in this case, the pictures, you know, are certainly very bloody and of concern given that anyone who would do that kind of thing and that is particularly troubling in light of the fact that you do have a 1989 [sic] conviction for assault and battery with great bodily injury. So those are the reasons, sir, that I find that you should be sentenced to the maximum.”
Defendant now contends that the court’s imposition of the upper term sentence on count 2 is unconstitutional under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), in that it violates his right to a jury trial. He argues that the sentence imposed in July 2005 was an illegal sentence under Blakely at the time it was imposed, that the trial court retained the right to correct the illegal sentence upon revocation of probation in 2006 (see People v. Price (2004) 120 Cal.App.4th 224, 244), and that he has not forfeited the claim because any objection in the trial court would have been futile after People v. Black (2005) 35 Cal.4th 1238 (Black I) and before Cunningham. (See People v. Sandoval (2007) 41 Cal.4th 825, 847, fn. 9.) Defendant further argues that, because he “agreed to a prison term of 7 years, 8 months or less, he is not estopped to challenge the imposition of that maximum term.”
The Attorney General contends that defendant has forfeited his claim because he failed to appeal the sentence in 2005 that he alleges is unauthorized. The Attorney General further contends that, having negotiated for the benefit of a specified prison term, defendant is now estopped from challenging his sentence following the revocation of probation in 2006, even if it was an unauthorized sentence at the time it was imposed as alleged. (See People v. Hester (2000) 22 Cal.4th 290, 295.) Lastly, the Attorney General contends that any Cunningham error in this case was harmless because the trial court’s findings in imposing the upper term fell under the recidivism exception of Almendarez-Torres v. United States (1998) 523 U.S. 224, 246 (Almendarez-Torres). (See People v. Black (2007) 41 Cal.4th 799, 818 (Black II).)
We need not decide whether defendant is estopped from challenging his sentence, because we find that any Cunningham error in this case was harmless.
“[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) Defendant’s criminal history rendered defendant eligible for the upper term sentence. (§ 1170, subd. (b); Black II, supra, 41 Cal.4th at p. 814.) “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. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres[, supra,] 523 U.S. 224 . . . .) ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, 523 U.S. at p. 243.)” (Black II, supra, 41 Cal.4th at p. 818.)
At the time the court imposed, but suspended execution of, the seven year eight month sentence in July 2005, it stated it considered not only the circumstances of the crime but also defendant’s “past criminal convictions,” particularly his “1989 conviction for assault and battery with great bodily injury.” The probation report for the July 2005 sentencing hearing reflects that defendant had been convicted of three felonies in 1988 (§ 243, subd. (d) [battery with serious bodily injury], § 245, subd. (a)(1) [assault likely to produce great bodily injury]), and, in a separate proceeding, § 496 [receiving stolen property]); additional felonies in 1991 (§ 487.2 [grand theft]), and 1997 (Health & Saf. Code, § 11352 [sale of a controlled substance]); and misdemeanors in 1992 (§ 484, subd. (a) [theft]), 1993 (§ 602.5 [trespassing] and § 148.9, subd. (a) [giving false identification]), 2001 (Health & Saf. Code, § 11364 [possession of controlled substance paraphernalia]), 2003 (§ 459 [burglary]), and 2004 (Health & Saf. Code, § 11364). These convictions are numerous (see Cal. Rules of Court, rule 4.421(b)(2)), and resulted in incarceration above and beyond the three prior prison terms defendant admitted having served.
The probation officer noted in the probation report that the sources for the discussion of defendant’s prior adult criminal history were “CLETS, CTS, CJIS, CII #A08772798, FBI #312502JA8.”
Defendant’s criminal history established an aggravating circumstance that satisfies Sixth Amendment requirements and rendered him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by imposition of the upper term sentence for the offense of assault with force likely to produce great bodily injury. (Black II, supra, 41 Cal.4th at p. 820.)
Restitution and Parole Revocation Fines
Defendant contends, and the Attorney General appropriately concedes, that the $2,800 restitution and parole revocation fines the court imposed in September 2006 must be reduced, because the court imposed a $400 restitution fine when sentencing him in July 2005. The imposition of a restitution fine at the time of conviction and granting of probation survives subsequent probation revocation. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823 (Chambers); People v. Downey (2000) 82 Cal.App.4th 899, 921.) “There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. Accordingly, since the trial court was without authority to impose the second restitution fine, it must be stricken. [Citation]” (Chambers, supra, 65 Cal.App.4th at p. 823.) We will order the abstract of judgment modified to reduce the restitution and parole revocation fines to $400.
Clerical Errors in the Abstract of Judgment
Defendant also contends, and the Attorney General appropriately concedes, that the amended abstract of judgment filed November 15, 2006, fails to properly reflect that the trial court imposed a consecutive, one-third the middle term sentence on count 1 (rather than on count 2) and assessed a $20 court security fee (rather than a $200 fee). We will order the abstract of judgment corrected to reflect the sentence imposed by the trial court. (People v. Hong (1998) 64 Cal.App.4th 1071, 1080; People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The abstract of judgment is ordered modified to reflect that the ordered restitution (§ 1202.4) and parole revocation (§ 1202.45) fines are $400, that the ordered court security fee is $20, that the sentence imposed on count 1 is the upper term, and that the sentence imposed on count 2 is a consecutive term of one-third the middle term. As so modified, the judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.