Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA081153, Gary E. Daigh, Judge. Affirmed and modified.
Robert H. Pourvali, 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, Assistant Attorney General, Chung L. Mar, Marc E. Turchin and Susan Lee Frierson, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury found appellant Hansel Terl Baber guilty of brandishing a deadly weapon (Pen. Code, § 417; count 2) and petty theft with a prior (§ 666; count 3). Prior to trial, appellant admitted having suffered a prior felony conviction as alleged in count 3. In the second portion of the bifurcated proceeding, the trial court found true the allegations that appellant had suffered a prior conviction within the meaning of the “Three Strikes” law and three prior prison terms within the meaning of section 667.5.
All further statutory references are to the Penal Code unless otherwise indicated.
After denying appellant’s Romero motion, the trial court sentenced appellant to state prison for a total term of nine years. The sentence consisted of the high term of three years, doubled to six years, on count 3 and three one-year terms for the prison priors. On count 2, the court imposed a six-month jail term to be served concurrently.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Appellant appeals on the grounds that: (1) the trial court abused its discretion in denying his Romero motion, and (2) the trial court abused its discretion in imposing the upper term in count 3 for petty theft with a prior under section 1170, subdivision (b) and under the Sixth Amendment. Respondent raises the issue that the trial court should have imposed an additional security fee upon appellant.
FACTS
Since appellant’s issues on appeal relate solely to sentencing, we briefly recite the pertinent facts in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) On September 15, 2005, Eriberto Gomez (Gomez) was a plain-clothed loss prevention officer at Home Depot. He noticed a man, later identified as appellant, in the tool corral. Appellant selected a rivet gun and rivets and slid them under the door at the back of the corral. Appellant then walked around to the items and picked them up. He removed the packaging and placed the items in his fanny pack. When appellant exited the store without paying, Gomez asked him to accompany Gomez to the security office.
In the office, Gomez handcuffed appellant and began to fill out his report. Appellant pleaded for “a break.” Appellant began to get upset and Gomez tried to hold him down on the bench where he was sitting. Appellant began to yell and struggle. Other people arrived, including employees and a relative of appellant, and there was a “huge distraction.” Another Home Depot employee pinned appellant against the desk. A knife was lying on the desk, and appellant grabbed it. Appellant told everyone to back up and let him go while he held the knife in front of him.
In the meantime, Gomez had gone to open a roll-up door for the police. On his way back to the office he saw appellant walk out of the office with a box-cutter-type knife. Gomez and appellant made eye contact, and appellant walked quickly toward Gomez while holding out the knife in his hands. Gomez ran out the roll-up door and appellant ran towards the front of the store and out to the parking lot. Police later found appellant sitting under a tree approximately 100 yards from the store.
DISCUSSION
I. Trial Court’s Refusal to Strike Appellant’s 1990 Conviction
A. Argument
Appellant contends the trial court abused its discretion in refusing to strike his prior serious felony conviction. Appellant points out that the offense occurred approximately 15 years before the instant crimes, and appellant had not been subsequently convicted of any serious or violent crimes. The evidence against appellant in the prior offense was circumstantial. Although appellant was convicted of assault on a peace officer, it is questionable whether the police officer was present when someone shot at the police car. Given these circumstances, it was not reasonable for the trial court to refuse to strike the prior conviction. This is especially true, appellant argues, because his crimes in the instant case would have amounted to only misdemeanors but for his record.
B. Proceedings Below
Appellant filed a motion requesting the court to strike appellant’s 1990 prior strike conviction, pointing out the minor nature of the current offense and the lengthy sentence that would still be imposed without the strike. Appellant stated he had suffered only two other convictions since 1990.
At sentencing, appellant referred to the arrest report for his strike conviction, a violation of section 245, subdivision (d)(1) (assault on a peace officer with a deadly weapon). According to the report, the incident occurred as a result of the officer’s pursuit of a tall male Black. The officer got out of his car and then remembered that he had left his handgun in his car. When he re-entered his car it would not start, and the officer noticed there was oil under the car. The next day in the police garage it was noted that there was a bullet hole in the oil crank case. The officer had not reported being shot at. It was not clear that the officer saw appellant or anyone fire a handgun.
The prosecutor argued that appellant pleaded guilty to the strike offense, which rendered the underlying circumstances immaterial. Also, the conduct described in the police report was consistent with what the prosecutor believed was appellant’s violent nature. In both that case and the current case appellant had tried to escape by using violence. Appellant had been in and out of prison and had a history of violence.
Appellant countered that he had been acquitted of assault with a deadly weapon in the instant case and had been cooperative with the security guard at first. The weapon he used was a found object, and his actions were consistent with trying to keep himself from being hurt rather than with hurting someone else. His record since the prior strike offense was purely drug-related, and there was no showing he was physically violent or threatening.
The court stated, “. . . as far as the Romero motion, it is appropriate for me to consider the facts and circumstances of the strike as well as the facts and circumstances of this case as to whether this is a strike or not and if the strike was proved. It is also incumbent upon me to determine his criminal history to see whether he has led a legally-blameless life or not. It goes without saying he has not. He has four separate commitments resulting in three one-year priors. There are some for drugs. One of the drug cases is evading. It looks like he has continuously violated his parole. He has continually violated his parole and gone back and forth. I think he is on parole now.” The prosecutor confirmed that appellant was on parole.
The court continued, “And the other thing I was looking at was I know I sentenced him in 2002, although I don’t remember Mr. Baber. While you were . . . discussing the strike, I had the clerk run the minute order to see whether it was a trial because I know he was sentenced to 28 months to see whether I struck a strike before and I did but it was pursuant to a disposition, not to any findings that I made. That was probably [a] significant thing to look at. But basically he has a drug problem. He takes things. He evades police and he has gone to prison and violated parole. If he hadn’t done anything obviously between now and 1990, we would be in a different position. In addition, he has had the opportunity with a strike being stricken by the People last time to take advantage of that. I think it would be inappropriate and outside the spirit of the Three-Strikes law for me to strike the prior again when he hasn’t learned that he can’t do this kind of conduct when he is on parole when he has had a lot of convictions. And I’ve considered the significance of the prior as well as this trial so the Romero motion is denied.”
C. Relevant Authority
Section 1385 provides that a judge may, on his or her own motion, order an action to be dismissed. (§ 1385, subd. (a).) The Supreme Court of California has stated that the trial court’s power to dismiss an action under section 1385 is limited by the “amorphous concept” that requires the dismissal to be ‘“in furtherance of justice.’” (Romero, supra, 13 Cal.4th at p. 530.) The Romero court stated that among the most important considerations are not only the constitutional rights of the defendant, but also the interests of society. (Ibid.)
According to Romero, a trial court would not act properly if it dismissed a sentencing allegation because it was guided only by a “‘personal antipathy for the effect that the three strikes law would have on [a] defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations.’ [Citation.]” (Romero, supra, 13 Cal.4th at p. 531.) An abuse of discretion occurs when “the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d. 68, 72.)
The Supreme Court provided additional guidelines for the exercise of discretion in People v. Williams (1998) 17 Cal.4th 148, 159-161 (Williams). It explained that, in making or reviewing a decision to strike a prior offense, a court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s [the Three Strikes law’s] spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.) The court cautioned that the standard for review of an exercise of discretion is “deferential,” although not “empty,” requiring the reviewing court to determine whether a ruling exceeds the bounds of reason under the law and relevant facts. (Id. at p. 162.)
D. Romero Motion Properly Denied
We agree with the trial court’s assessment that appellant is within the spirit of the Three Strikes law. Although appellant’s strike conviction occurred in 1990, the chronological record of appellant’s commitments shows that appellant has been in and out of prison for the last 20 years for various offenses. He was sent to prison for several theft-related offenses in November 1986 and paroled in April 1988. In September 1988 he was arrested and reinstated on parole. That same month his parole was revoked and he was sent back to prison, arriving in November 1988. In February 1990, he escaped and was returned. In April 1990 he was paroled to Fresno. One month later his parole was suspended and he was returned to prison. In September 1990 he was reinstated on parole, which was promptly revoked. In June 1991 he received an additional commitment of six years to run concurrently with another case. This was the commitment based on the strike prior.
In February 1994, appellant was again paroled to Fresno and was arrested in May 1994. In June 1994 his parole was revoked and he was returned to prison. In December 1994 he was paroled again. It appears that in May 1995 appellant was once more received into prison where he remained until April 2000, when he was paroled to Compton. In May 2002 he was again sent to prison and was paroled to Compton in April 2003. In October 2003 his parole was suspended, and in November 2003 appellant was arrested in Texas. After a hearing, his parole was revoked in February 2004. In April 2004 he was again paroled to Compton. In May a hold was placed on him, and a revocation hearing occurred in August 2004. The scheduled release date was June 27, 2007. The current crimes occurred on September 15, 2005.
This record shows us that appellant has spent most of the last 20 years in prison because, upon being released, he promptly reoffends. The “remoteness” of his 1990 strike is thus placed in its proper context. As for the nature of his strike conviction, the circumstantial evidence that he fired a shot at a police car while fleeing along the highway was strong. According to evidence admitted in the court trial of appellant’s prior conviction allegation, a police officer chasing a car seen fleeing the scene of a commercial burglary saw the suspect, later identified as appellant, lean out of the driver’s window of his car. Appellant’s car began to drift and appellant pulled his head and shoulders back into the car. Appellant then lost control of the car, crashed, and fled on foot. It was later discovered that the pursuing police car had been damaged by a bullet.
In addition to the assault upon a police officer, appellant’s crimes have included possession of a controlled substance, burglaries, possession of stolen property, petty thefts with priors, evading an officer, and possession of cocaine. According to the probation report, appellant has no employment history. It is therefore safe to say that appellant is a career criminal.
Given the aforementioned facts and in conformity with the guidelines of Williams, supra, 17 Cal.4th at page 161, we conclude that “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects,” appellant may not be “deemed outside [the Three Strikes law’s] spirit,” and we find no abuse of discretion in the trial court’s ruling.
II. Imposition of Upper Term
A. Proceedings Below
At sentencing, appellant argued that the low term doubled was sufficient punishment and reiterated that his conduct in the current crime amounted to a petty theft of $19 worth of goods. He pointed out that his alleged use of a weapon was found to be misdemeanor conduct by a jury.
In sentencing appellant to the upper term of three years, the trial court stated: “I have also considered the probation report that we have been talking about in reference to that was prepared on October 3rd, 2005, and the principal term would be count 3, a violation of Penal Code section 666. The following aggravating factors are found by the court: one, that you were on parole at the time that you committed this offense; two, the court could sentence you to a consecutive six-month sentence on count 2 because it involves actually a separate time and place and a separate victim but we are going to make that a concurrent sentence of six months. Those are the aggravating factors. There are no mitigating factors.”
B. Argument
In his opening brief, relying on Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), appellant contended that the trial court abused its discretion in imposing the upper term of three years for the petty theft conviction under section 1170, subdivision (b) and improperly weighed the factors in aggravation and mitigation. After the decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 868] (Cunningham), in which the high court made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum” and the subsequent decisions of the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), appellant submitted supplemental briefing on the effect of Black II and Sandoval on his sentence.
This is the second review of the case of People v. Black by the California Supreme Court following remand from the United States Supreme Court after the decision of Cunningham.
Appellant asserts that nothing in Sandoval or Black II undermines his position that the trial court’s imposition of the upper term violates his Sixth Amendment constitutional rights. The fact that no consecutive six-month sentence was imposed in count 2 was not a factor in aggravation within the meaning of the determinate sentencing laws (DSL). More importantly, he argues, the trial court based the upper term on its determination of a fact that was not found by the jury, i.e., that appellant was on parole at the time he committed the offense and that his performance on parole and probation was unsatisfactory.
Respondent argues that the trial court’s reliance on appellant’s criminal history in the form of its findings regarding parole was permissible under Cunningham and rendered appellant eligible for the upper term. Any additional aggravating circumstances found did not violate appellant’s right to jury trial under Cunningham. Furthermore, any Cunningham error was harmless.
C. Upper Term Properly Imposed
In Apprendi, the United States Supreme Court held that “[o]ther 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.” (Apprendi, supra, 530 U.S. at p. 490.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.) In Cunningham, the high court concluded that California’s DSL was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at p. 871.)
After the decision in Cunningham, the California Supreme Court held that “as 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 factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) Black II and its companion case, Sandoval, reiterated that the right to a jury trial does not apply to the fact of a prior conviction. (Black II, supra, at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836-837.) Black II emphasized that the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, supra, at p. 819.)
The trial court’s determination that appellant was on parole at the time of the instant offenses is the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at pp. 819-820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) The material in evidence at appellant’s trial on the prior conviction allegation listed the chronological history of his incarcerations and releases. This evidence shows that a parole hold was placed on appellant on May 28, 2004, and the release date was to be June 27, 2007. Therefore, appellant was on parole at the time he committed the offenses at the Home Depot on September 15, 2005. Once the trial court made this determination, appellant was eligible for the upper term, which became the statutory maximum. (Black II, supra, at p. 816.) Therefore we find no violation of Cunningham.
California Rules of Court, rule 4.421(b)(4) lists as a factor in aggravation: “The defendant was on probation or parole when the crime was committed.”
Moreover, even if the trial court’s use of this factor were determined to be in error, we conclude that the error would be deemed harmless. Sandoval articulated a harmless error test for Cunningham error, stating that “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Sandoval, supra, 41 Cal.4th at p. 839.) The reviewing court must take into consideration the fact that the factual record might not have been the same if the aggravating factors had been charged and tried to a jury. (Id. at p. 840.) The reviewing court must also consider whether the wording of the enumerated aggravating factor creates a vague or subjective standard and whether the facts of the aggravating factor were contested, so that it would be difficult to determine how the jury would resolve the dispute. (Id. at p. 840.)
We conclude that any error was harmless in the instant case, since the factor of appellant’s parolee status passes muster under the Sandoval test. The factual record provided by the prosecutor was the same record that would have been presented to the jury had appellant not waived a jury trial on his prior conviction allegation.
Also, the aggravating factor here presents neither a vague nor a subjective standard—it is a fact that can be verified precisely and objectively. Defense counsel did not contest appellant’s parole status, but merely argued for leniency. We conclude beyond a reasonable doubt that, given the opportunity, the jury would have found beyond a reasonable doubt that appellant was on parole had it been presented with the certified records before the trial court.
III. Additional Security Fee
Respondent argues that appellant should have been required to pay a $20 security fee for each of his two convictions. Section 1465.8, subdivision (a)(1) provides in pertinent part that “[t]o ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense.” (§ 1465.8; People v. Wallace (2004) 120 Cal.App.4th 867, 871.) “[S]ection 1465.8 unambiguously requires a fee to be imposed for each of defendant’s convictions. Under this statute, a court security fee attaches to ‘every conviction for a criminal offense.’” (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) Because appellant was convicted of two offenses, two $20 fees must be imposed, for a total of $40. (Id. at p. 866.) We therefore modify the judgment accordingly.
DISPOSITION
The judgment is modified to impose a court security fee for each conviction. As modified the judgment is affirmed. The trial court is directed to modify the abstract of judgment to reflect a total of two $20 fees pursuant to section 1465.8.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J