Opinion
C055609
9-19-2008
THE PEOPLE, Plaintiff and Respondent, v. EMMETT WADE CHRISTIAN, Defendant and Appellant.
Not to be Published
In case No. 06F00442, defendant Emmett Christian pleaded no contest to a charge of cocaine possession. The trial court suspended imposition of sentence and placed him on probation in February 2006 with the condition that he participate in a drug treatment program and serve six months in jail (which condition it stayed pending the successful completion of the program).
However, based on subsequent events occurring in May 2006, a jury convicted him in February 2007 in case No. 06F04779 of pandering, battery, and felony vandalism. The trial court sustained five recidivist allegations. In sustaining defendants objection to submitting any sentencing factors to the jury, the trial court noted that defendants multiple prior convictions and probationary status would allow the imposition of the upper term on any count even without any jury findings.
At sentencing in April 2007, defendant moved for a reduction of the felony vandalism count to a misdemeanor and requested that the court exercise its discretion to strike the recidivist findings. The trial court granted the motion and also exercised its discretion to strike four of the recidivist findings on the ground that these robbery convictions represented a "single period of aberrant behavior" that occurred when defendant was 16, but declined to strike the finding that was based on his federal conviction as an adult for bank robbery. The court then imposed the upper term for the pandering conviction (doubled by virtue of his prior conviction), with concurrent jail terms for the two misdemeanors. Having previously found defendant in violation of probation in case No. 06F00442 based on his convictions in the other case, the court declined to reinstate him on probation and imposed a consecutive sentence of one-third the middle term.
We granted defendants motion to include case No. 06F00442 within the ambit of the notice of appeal filed in the other case. On appeal, defendant contends the imposition of the upper term for his pandering conviction and a consecutive sentence for his drug conviction violated his right to a jury trial, and amendments to the Determinate Sentencing Law are similarly unconstitutional. He also maintains that the abstracts of judgment do not accurately reflect his sentence. We shall affirm and direct a correction of the abstracts of judgment.
The nature of defendants arguments makes it unnecessary to relate the facts underlying his convictions. We therefore dispense with them.
Defendant contends that the courts imposition of the upper term and consecutive sentences based on the judicially determined fact of his record of prior convictions and poor performance on probation was a violation of his right to a jury trial under the principles of Cunningham v. California (2007) 549 U.S. 270 . He acknowledges that this claim is foreclosed under the final and conclusive authority of People v. Black (2007) 41 Cal.4th 799, 816, 819-820, 823, but wishes to preserve the argument "for purposes of further federal review." Adhering to the pronouncements of our Supreme Court, we reject his claims.
The People concede that the abstracts of judgment in the two cases are incorrect as both reflect a nonexistent "enhancement" of six years, which must be deleted, and the abstract in case No. 06F04779 does not indicate sentencing "pursuant to PC 667 (b)-(i) or PC 1170.2 (two-strikes)" in the appropriate part of the form. We will direct the trial court to correct them.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstracts of judgment as indicated in this opinion and to forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur:
NICHOLSON, J.
CANTIL-SAKAUYE, J. --------------- Notes: Defendant does not make clear how the statutory amendments provide any separate basis for asserting a constitutional violation, as the trial court did not purport to exercise the discretion that the amendments granted in sentencing decisions but simply relied on recidivism to impose the upper term, so we do not consider this claim further.