Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04908363-5. Gary R. Orozco, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Gomes, J., Dawson, J.
OPINION
Appellant, Richard Basmajian, pled no contest to theft from an elderly person (Pen. Code, § 368, subd. (d)) and admitted an excessive taking enhancement (§ 12022.6, subd. (a)(2)).
All further statutory references are to the Penal Code.
On January 10, 2007, the court sentenced Basmajian to the upper term of four years on the theft offense and a two-year term on the enhancement. The court also imposed a $20 court security fee (§ 1465.8, subd. (a)(1)). On appeal, Basmajian contends: 1) the court committed Blakely error; and 2) the court erred when it ordered him to pay a $20 court security fee. We will affirm.
Blakely v. Washington (2004) 542 U.S. 296.
FACTS
In 1995 Basmajian contacted the elderly victim, Robert Kanagawa, and obtained $25,000 from him ostensibly for a $10,000,000 deal involving the movement of sugar from Brazil to China.
Kanagawa is described in the probation report as being 86 years old on an unspecified date.
In 1997 Kanagawa gave Basmajian another $100,000 to help finance a deal to send steel to Russia and to build an amusement park in Japan. Basmajian told Kanagawa he had $1,000,000 in a bank for Kanagawa, and would give it to him when an IRS hold on the money cleared.
From 1995 through August of 2002, Basmajian met with Kanagawa more than 40 times and would always tell him that the deals were ready to close. At their last meeting, Kanagawa told Basmajian that he did not have any more money. Over a nine-year period Basmajian took $625,000 from Kanagawa, $25,000 in a check and the rest in cash.
During an interview with FBI agents, Basmajian stated that the money he received from Kanagawa was a personal loan, and was not intended to finance a sugar deal.
On March 18, 2004, Basmajian met with detectives and again stated that the money he received from Kanagawa was a personal loan at 10 percent interest and was not for investment purposes. However, nothing was ever put into writing and Basmajian never attempted to pay Kanagawa any of the money.
On November 11, 2005, the district attorney filed a complaint charging Basmajian with one count each of theft from an elderly adult (count 1/§ 368, subd. (d)) and grand theft of personal property (count 2/§ 487, subd. (a)) and an excessive taking enhancement.
On December 6, 2005, pursuant to a negotiated plea, Basmajian pled no contest to count 1 and admitted the excessive taking enhancement in exchange for the dismissal of count 2. The agreement also provided that if Basmajian paid full restitution of $625,000 within one year the criminal case would be dismissed. However, Basmajian failed to pay any restitution within the year.
On January 10, 2007, the court sentenced Basmajian to an aggregate term of six years: the aggravated term of four years on the theft offense and a two-year excessive taking enhancement. In sentencing Basmajian to the aggravated term the court stated,
“The Court, having weighed and balanced those factors in mitigation versus those in aggravation, finds -- finds that the factors in aggravation outweigh those in mitigation. Specifically, looking at the nature of the case, the defendant took advantage of a position of trust. That position of trust was violated, and on not just one occasion where it was here, give me one amount of money on this one occasion and there was a fraud involved, it was on a number of occasions over a number of years that that was -- that that occurred. Moreover, the amount involved approximately four times the minimum of $150,000, that is the -- the basis of the 12022.6 [enhancement]. It was four times that amount. The crime showed a high degree of sophistication and professionalism. And that despite the defendant having no prior criminal history, those factors outweigh the factors in mitigation.”
DISCUSSION
Imposition of the Aggravated Term
“The United States Supreme Court has recognized two exceptions to a defendant's Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.)
California Rules of Court, rule 4.421(a)(9) allows the court to find an aggravating circumstance if “[t]he crime involved an attempted or actual taking or damage of great monetary value[.]”
All further rule references are to the California Rules of Court.
Section 12022.6, subdivision (b) provides: “If the loss exceeds one hundred fifty thousand dollars ($150,000), the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of two years.”
Basmajian implicitly admitted he stole $625,000 from the victim when he pled guilty to the theft from an elderly person charge and agreed to pay the victim this amount in restitution. Thus the court properly found an aggravating circumstance based on rule 4.421(a)(9) because Basmajian implicitly admitted taking an amount from the victim that was more than four times the amount needed to trigger the excessive taking enhancement.
In People v. Sandoval, supra, 41 Cal.4th 825, the court reaffirmed 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.’ [Citations.]” (Id. at p. 839.) Since one of the circumstances the court relied on to impose the aggravated term was established consistent with Sixth Amendment principles, the court acted within its discretion when it imposed the aggravated term on Basmajian’s theft from an elderly person conviction.
Basmajian contends that the court was prohibited from relying on the amount he took from the victim to aggravate his sentence because doing so amounted to a prohibited dual use of facts. We disagree.
Preliminarily, we note that Basmajian did not object to the trial court’s reliance on this factor to impose the aggravated term. “The failure to state reasons or the use of improper circumstances for a sentencing decision is not a jurisdictional error. (People v. Scott (1994) 9 Cal.4th 331, ... [the defendant’s claim that reasons used for sentencing were ‘inapplicable, duplicative, and improperly weighed’ was waived]; People v. de Soto (1997) 54 Cal.App.4th 1, 7-8 ... [improper dual use of facts underlying weapons use to impose the upper term waived by failure to impose a more specific objection at sentencing]; ... People v. Erdelen (1996) 46 Cal.App.4th 86, 91 ... [improper dual use of facts to impose upper term waived]; ....” (People v. Brown (2000) 83 Cal.App.4th 1037, 1041-1042.) Consequently, Basmajian waived any dual use of facts error that may have occurred. In any event, even if this issue were properly before us we would reject it.
“Rule [4.420(d)] provides: ‘A fact that is an element of the crime shall not be used to impose the upper term.’ However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence. [Citation.] Stated another way, rule [4.420(d)] does not preclude a court from using facts to aggravate a sentence when those facts establish elements not required for the underlying crime [or enhancement].” (People v. Castorena (1996) 51 Cal.App.4th 558, 562.)
As noted earlier, the amount taken from the victim was more than four times the $150,000 needed to trigger the excessive taking enhancement. Thus, we conclude that the court’s reliance on this factor did not violate the rule prohibiting the dual use of facts. (Cf. People v. Castorena, supra, 51 Cal.App.4th 558, [in sentencing the defendant to the aggravated term on his gross vehicular manslaughter while intoxicated, court properly relied on facts that it found established that defendant’s negligence exceeded gross negligence].) Accordingly, we reject Basmajian’s contention that the court erred when it imposed the aggravated term.
The Court Security Fee
Article I, section 10, clause 1 of the federal Constitution and article I, section 9 of the state Constitution prohibit the passage of ex post facto laws. Similarly, section 3 provides: “No part of [the Penal Code] is retroactive, unless expressly so declared.”
Section 1465.8 provides:
“To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
Section 1465.8 became effective on August 2, 2003 (Stats. 2003, ch. 159 (A.B.1759), § 25), after Basmajian’s commission of the underlying offense in this matter. Basmajian contends that, because his commission of the underlying offense predated the effective date of section 1465.8, the court’s imposition of the $20 security fee violated section 3 and the ex post facto clauses of the state and federal Constitutions.
Recently in People v. Alford (Dec. 3, 2007, S142508) __ Cal.Rptr.3d __, [2007 WL 4225579] the California Supreme Court rejected these exact claims. (Also see People v. Wallace (2004) 120 Cal.App.4th 867, 878-879 [the security fee pursuant to section 1465.8 does not violate ex post facto principles].) In holding that the law did not violate section 3 the court concluded that “[s]ection 1465.8’s legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date.” In holding that it did not violate ex post facto principles the court concluded that the fee was not punitive. (Accord, People v. Wallace, supra, 120 Cal.App.4th 867, 878-879.) In accord with these authorities, we reject Basmajian’s contention that the security fee imposed here violated section 3 or the ex post facto clauses of the state and federal Constitutions.
Basmajian also contends imposition of the fee denied him the equal protection of the law because civil litigants are no longer required to pay a similar court security fee. Basmajian waived his equal protection argument because he did not raise it in the trial court. (People v. Sumahit (2005) 128 Cal.App.4th 347, 354, fn. 3.) Further, “An equal protection claim contains the following essential elements: (1) plaintiff was treated differently from other similarly situated persons; (2) the difference in treatment was intentional; and (3) there was no rational basis for the difference in treatment.” However, in making his equal protection claim, Basmajian does not advance any argument or authority that addresses these elements. Accordingly, we reject his equal protection argument on this basis as well. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [“When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court’”].)
DISPOSITION
The judgment is affirmed.