Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORT
APPEAL from the Superior Court of Riverside County. Super. Ct. No. SWF016733 F. Paul Dickerson III, Judge.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Thereafter, defendant admitted the truth of allegations that he had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and served two prior prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced defendant to an aggregate term of eight years’ imprisonment, consisting of the upper term of three years, doubled pursuant to the strike prior, and an additional one year, consecutive, on each of the two prior prison terms. On appeal, defendant contends the court committed Cunningham error in imposing the upper term, that defendant’s counsel below was constitutionally ineffective for failing to object on that basis, that the court violated constitutional principles against ex post facto punishment by proceeding pursuant to the amended version of Penal Code section 1170, subdivision (b), and that the court abused its discretion in imposing the upper term. We find defendant’s contentions unavailing and, therefore, affirm the judgment in full.
Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham).
I. FACTS AND PROCEDURAL HISTORY
Officers were dispatched to a residence in regard to a report that a woman was cutting herself. When they arrived, the woman was no longer present. The officers attempted to locate her and determine the extent of her injuries by speaking with the individuals located therein. While they were unable to locate her, they were informed that the woman’s injuries were nonlife-threatening; therefore, the officers decided it was unnecessary to continue their search for her. One of the individuals with whom the officers spoke was defendant.
The officers left the residence, but returned to arrest defendant. A search of defendant incident to the arrest revealed a small plastic baggie containing what Deputy Perea believed to be methamphetamine. Deputy Perea conducted a chemical field test on the substance, which resulted in a positive result as a controlled substance.
Defendant was on parole and had an active warrant out for his arrest. The trial court denied the People’s in limine request that evidence of defendant’s warrant be deemed admissible at trial. Instead, the parties stipulated that Deputy Jesus Perea “conducted a lawful and valid arrest and search of the defendant’s person.” That stipulation was read to the jury and a written copy of it given to the jury upon deliberation.
Deputy Perea read defendant his Miranda rights, which defendant expressed he understood and waived. Deputy Perea asked defendant what was in the bag and where he acquired it. Defendant initially told Deputy Perea he put his head down on his bandana to pray and a bag of methamphetamine appeared in the morning. Defendant later told Deputy Perea “he purchased [the methamphetamine] for a lot of money . . . .” Javed Khan, a criminalist with the California Department of Justice’s crime laboratory, conducted two tests on the substance, both of which confirmed that it was methamphetamine.
Miranda v. Arizona (1966) 384 U.S. 436.
The People charged defendant by amended information with possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Additionally, the People alleged defendant had suffered one prior strike conviction and two prior prison terms. (Pen. Code, §§ 667, subds. (c) & (e), 1170.12, subd. (c)(1), 667.5, subd. (b).)
Prior to trial, defendant’s counsel expressed doubt as to defendant’s mental competency to stand trial. Pursuant to Penal Code section 1368, the court suspended criminal proceedings and appointed two doctors to evaluate defendant.
Dr. David M. Walsh’s report noted that defendant denied any history of psychiatric illness or hospitalization. Dr. Walsh observed that defendant did not exhibit any symptoms of a serious psychiatric disorder, psychosis, or any other severe mental disorder. He concluded that defendant was competent to stand trial.
Dr. Dennis W. Wallstrom’s report similarly noted that defendant reported never having been on psychiatric disability or receiving any psychiatric treatment in his life. Dr. Wallstrom likewise concluded that there was no evidence that defendant was mentally incompetent to stand trial. Hence, the court found defendant mentally competent to stand trial.
After defendant’s conviction and admission of the enhancement allegations, but prior to sentencing, defense counsel again expressed concern regarding defendant’s mental competency to stand for further proceedings. The court, again, appointed two doctors to evaluate defendant. The probation officer’s report, already prepared at this point and made available to both defendant’s psychological evaluators, notes that defendant had previously been found mentally incompetent on two occasions and had been sent to Patton State Hospital. The probation officer’s report also cites defendant as denying he had made any statement to Deputy Perea that he had prayed for the methamphetamine to appear. However, defendant further informed the probation officer that, “You can tell the Judge that I’m the apostle of Allah, of God, the Almighty, and I claim submission to his will.”
Dr. Michael E. Kania’s report indicated that he was unable to conduct an evaluation of defendant because defendant was uncooperative. However, Dr. Kania did note that defendant stated that the purpose of conducting the evaluation was “to talk to him about Virginia Tech and other topics.” Dr. Harvey W. Oshrin’s report noted that “[defendant] told me that he spent 30 days [in] observation at Patton State Hospital around 1990 following which he was returned to court. He claimed no other state hospitalizations. He did comment however ‘My attorney would like to send me to Patton, at my age it would be a nicer atmosphere.’ [Defendant] denied having any psychiatric care [or] treatment when not in custody.” Dr. Oshrin concluded defendant was competent to stand for further proceedings.
At sentencing, defendant’s counsel asked that the court consider defendant’s “serious mental health issues” in rendering sentence. In denying defendant’s motion to strike his prior strike conviction, the court recited defendant’s felony criminal history, which includes convictions for assault on a peace officer, assault, and false imprisonment. The court noted that defendant was being sentenced pursuant to amended Penal Code section 1170. In selecting the upper term, the court again recited defendant’s criminal history, this time referencing some of defendant’s misdemeanor convictions. The court explained its selection of the upper term by stating that defendant “represents a serious threat to the community based on his past conduct.” It reiterated, “the defendant represents a serious threat to the community, a danger to the people he comes in contact with, as well as a consistent refusal to conform to the rules of society.”
II. DISCUSSION
A. The Court Did Not Violate Constitutional Principles Against Ex Post Facto Punishment by Sentencing Defendant Pursuant to Amended Penal Code Section 1170
Defendant contends the trial court violated the ex post facto clause of the federal Constitution by sentencing him to the upper term on count 1 under Penal Code section 1170, subdivision (b), as amended by Senate Bill No. 40, since he committed the offenses before it became effective. He maintains this impermissibly allowed the court to act as a fact finder in determining the bases for imposing the upper term sentence. Although defendant states that he knows we are bound by California Supreme Court precedent under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, he nonetheless raises as an issue the legitimacy of the holding and rationale of People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) to preserve those issues for federal review.
In Cunningham, the Supreme Court concluded California’s determinate sentencing law (DSL) violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 860, 871].)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court, stated: “[D]efendant’s criminal history . . . also rendered defendant eligible for the upper term sentence. [Citation.] 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. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Id. at p. 818.) Thus, Black II held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
In response to Cunningham, the Legislature amended the DSL effective March 30, 2007. (Sandoval, supra, 41 Cal.4th at p. 836, fn. 2.) As defendant recognizes, the Sandoval court rejected an ex post facto contention similar to the one he makes here. It ultimately concluded “that the federal Constitution does not prohibit the application of the [Senate Bill No. 40] revised sentencing process . . . to defendants whose crimes were committed prior to the date of [this] decision . . . .” (Id. at p. 857.) In reaching this conclusion, Sandoval noted that a law violates the ex post facto clause only if it applies to events occurring before its enactment in a manner that substantively disadvantages the offender. (Id. at pp. 853-854.) That is not the case with Senate Bill No. 40. As Sandoval explained, “the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to—and would not be expected to—have the effect of increasing the sentence for any particular crime. . . . Moreover, . . . the difference in the amount of discretion exercised by the trial court in selecting the upper term under . . . former [Penal Code section 1170], as compared to the [Senate Bill No. 40] scheme . . . is not substantial.” (Sandoval, supra, at p. 855.) Therefore, applying the procedural terms of Senate Bill No. 40 to sentencing for crimes committed before the passage of Senate Bill No. 40 violates no principle of ex post facto protection, as it is a judicial procedure deemed necessary to comply with constitutional principles. (Sandoval, supra, at p. 855.)
Sandoval applied the terms of Senate Bill No. 40 to its case, although the crime in that case occurred before the passage of that amendment. (Sandoval, supra, 41 Cal.4th at p. 845.) Thus, courts faced with sentencing after Senate Bill No. 40 became effective must apply the terms and procedures in Senate Bill No. 40. Here, defendant was sentenced on August 24, 2007, well after Senate Bill No. 40 became effective and after Sandoval affirmed the validity of that law. (Sandoval, supra, 41 Cal.4th 825.) We therefore must reject defendant’s request to disregard the holding and rationale of Sandoval. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In any event, even if there is any debate whether Sandoval disposes of defendant’s ex post facto contention here, we find that the trial court sentenced defendant to the upper term based primarily on defendant’s prior record of criminal convictions, a constitutionally valid exception to Cunningham’s dictates. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].) As the trial court stated, “[t]he Court chooses the upper term in state prison because it feels the upper term best serves the interests of justice. [¶] The Court feels this way because the defendant represents a serious threat to the community based on his past conduct.” (Italics added.) That “past conduct” consisted of defendant’s previous criminal convictions for 14 misdemeanors and three felonies as partially recited by the court immediately prior to and after making this statement. The court further expounded its reasons for imposing the upper term: “In the opinion of the Court, the defendant represents a serious threat to the community, a danger to the people he comes in contact with, as well as a consistent refusal to conform to the rules of society. It is for these reasons the Court feels that the interests of justice dictate that the appropriate term of imprisonment is the upper term of three years.” The clauses “based on his past conduct” and “a consistent refusal to conform to the rules of society,” within the context of the court’s recitation of defendant’s criminal record immediately before, are simply euphemisms for defendant’s prior record of criminal convictions. Hence, to the extent the court was required to abide by Cunningham’s proscriptions against judicial factfinding, the court properly selected the upper term based on defendant’s prior convictions.
To prevail on his claim of ineffective assistance of counsel, defendant must demonstrate both deficient performance as well as prejudice. (People v. Osband (1996) 13 Cal.4th 622, 670.) As discussed above, the court did not err in proceeding pursuant to amended Penal Code section 1170 in sentencing defendant and, to the extent it did, it still imposed the upper term pursuant to the proper criteria. Therefore, defendant has failed to meet his burden on either prong.
To the extent defendant could contend that consideration of defendant’s felony convictions in selecting the upper term constituted improper dual use since those convictions were used for imposing the enhancements (People v. Fain (1983) 34 Cal.3d 350, 357 [court may not use fact which is used to enhance the sentence as a basis for selecting the upper term]), we find that the court’s recitation of defendant’s prior misdemeanor convictions supplied a proper basis to impose the upper term (People v. Stuart (2008) 159 Cal.App.4th 312, 314 [defendant’s six prior misdemeanor convictions supported imposition of upper term]). Indeed, the court specifically mentioned two of defendant’s previous misdemeanor convictions and his status on probation for two misdemeanor convictions when he committed the offense of felony assault on a peace officer. The court in Black II held that a trial court’s finding of a single circumstance in aggravation that independently satisfies Sixth Amendment requirements is sufficient to uphold an aggravated sentence. (Black II, supra, 41 Cal.4th at p. 812.) “[A]ny 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.” (Ibid.)
B. The Court Acted Well Within Its Discretion in Imposing the Upper Term
As a result of the amendments to Penal Code section 1170, trial courts now have discretion to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Sandoval, supra, 41 Cal.4th at pp. 846-847.) Although broad discretion is afforded by the amended sentencing scheme, a trial court must set forth reasons for imposing the selected term, and its sentencing decision is subject to review for abuse of discretion. (Id. at p. 847; Pen. Code, § 1170, subd. (c).) “The trial court’s sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.] As under the former scheme, a trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]” (Sandoval, supra, at p. 847.)
Here, the trial court acted well within its discretion in imposing the upper term. The court indicated that it had read the probation officer’s report, the parties’ sentencing memoranda, and the psychologists’ reports. As noted above, the court twice recited defendant’s criminal history before selecting the upper term. That record consisted of convictions for 14 misdemeanor and three prior felony offenses. Defendant’s criminal record went back to 1977. It also consisted of multiple probation and parole violations. Defendant’s three prior felony convictions were for assault, assault on a peace officer, and false imprisonment. The court noted that defendant “was out [of prison] only a short time when charged with the underlying offense.” Thus, the court properly exercised its discretion with individualized consideration of the defendant, the public, and the crime. Its determination that defendant posed a serious threat to the community by virtue of his recidivism was well supported by the record.
Defendant contends that his long history of drug use and his mental health issues mitigated against imposition of the upper term. Defendant’s record reflects two previous convictions for possession of controlled substances, in June 1986 and August 1992, and one conviction for being under the influence, in February 1994. Defendant admitted to Dr. Wallstrom a long history of methamphetamine use. Nevertheless, a court may properly consider drug use as an aggravating factor in some circumstances. (People v. Vacca (1995) 38 Cal.App.4th 804, 808, disapproved of on other grounds in People v. Ledesma (1997) 16 Cal.4th 90, 101, fn. 5.) Here, defendant had apparently been placed in a drug diversion program after his initial 1986 conviction for possession. Defendant’s failure to succeed in that program, and his subsequent failure to seek help over the ensuing two decades, fails to mitigate his subsequent, substantial accumulation of criminal convictions. Indeed, defendant denied having a significant history of substance abuse to the probation officer. Defendant adduced no evidence of his drug addiction other than his prior record of convictions for drug offenses and his statement to Dr. Wallstrom. If defendant did have a substance abuse problem, then surely he bears some responsibility for attempting to rectify that problem. Defendant offered no evidence of any attempts he made to remedy his alleged addiction. It certainly does not rise to the level of an abuse of the trial court’s broad discretion that the court did not consider defendant’s drug use a sufficiently mitigating factor to impose a lesser sentence.
Likewise, defendant’s mental health issues are not at all well documented on this record. While defendant’s counsel twice expressed concern regarding defendant’s mental competency to stand for further proceedings and the court twice referred defendant out for psychological evaluations, all three doctors who evaluated defendant determined he was mentally competent. Defendant denied any history of psychiatric illness or hospitalization to both Drs. Walsh and Wallstrom. While the probation officer’s report reflected that defendant had previously been found mentally incompetent twice and temporarily sent to Patton State Hospital, there was no documentation or recitation of facts to support this or provide context to those occurrences. Defendant told Dr. Oshrin that he had spent one 30-day period in observation at Patton State Hospital in 1990, but was immediately returned to court and was never, thereafter, hospitalized again. While defendant reportedly stated he received the methamphetamine at issue in this case through prayer, defendant himself denied ever saying this and Deputy Perea testified that defendant was speaking sarcastically when he said it.
It is true that defendant told the probation officer that he was “the apostle of Allah, of God, the Almighty, and I claim submission to his will”; nevertheless, that statement alone is not suggestive of long-term mental illness. Neither is defendant’s statement to Dr. Kania that the evaluation was in regards to “Virginia Tech.” Notably, defendant told Dr. Oshrin that his trial counsel was tactically attempting to get him sent to Patton State Hospital because “at my age it would be a nicer atmosphere.” Thus, the credibility of any evidence on this record which might support the inference that defendant was suffering from some sort of mental illness at the time he committed the underlying crime has to be evaluated in context with defendant’s confessed attempt to receive hospitalization, rather than imprisonment, for reasons unrelated to mental illness. The trial court could reasonably have determined that defendant had no serious mental issues at all or, to the extent he did, they were not of sufficient gravity to mitigate against his vast criminal record. Moreover, the court could have reasonably determined that defendant bore some responsibility for seeking treatment himself for any apparent mental deficiency. Indeed, defendant “denied having any psychiatric care [or] treatment when not in custody.” Thus, the court’s imposition of the upper term was well within its discretion.
III. DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., Richli, J.