Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County,Ct. No. NA068981 Tomson T. Ong, Judge.
Jennifer L. Peabody, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
For the third time, Charles Fluker appeals the sentence imposed by the trial court on his conviction for possession of cocaine in violation of Health and Safety section 11350, subdivision (a). We previously vacated the sentence and remanded for resentencing. The California Supreme Court directed this court to vacate our prior decision and to reconsider the cause in light of decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Because the imposition of the upper term sentence based entirely on facts neither admitted by Fluker nor found true by the jury beyond a reasonable doubt violated his Sixth Amendment right to a jury trial as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), we remanded the matter for resentencing consistent with Sandoval.
This time we affirm, concluding the trial court did not abuse its discretion by imposing the upper term and Fluker’s resentencing was not in violation of the ex post facto clause, and constitutional guarantees of due process and equal protection in light of Sandoval.
FACTUAL AND PROCEDURAL BACKGROUND
Fluker was charged with possession of cocaine base for sale in violation of Health and Safety Code section 11351.5 and unlawful possession of ammunition in violation of Penal Code section 12316, subd. (b)(1). For both counts it was alleged that Fluker had suffered two prior serious felony convictions for purposes of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) (the “Three Strikes” law). It was also alleged pursuant to Health and Safety Code section 11370.2, subdivision (a) that Fluker previously had been convicted of violations of several enumerated Health and Safety Code provisions.
Statutory references are to the Penal Code unless otherwise indicated.
Fluker’s first trial ended in a mistrial. During Fluker’s second trial, after both the prosecution and defense had rested, Fluker asked for a continuance so he could hire private counsel. The court denied the request, as well as Fluker’s request to address the court. Outside the jury’s presence, Fluker became upset and disruptive at one point; the court believed he was attempting to escape from the courtroom. The court ordered Fluker into lockup and excluded him from the remainder of the trial.
Fluker was convicted of the lesser offense of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and the charged offense of unlawful possession of ammunition. The jury also found that Fluker had sustained a prior “strike” conviction for violating section 459 (residential burglary).
At sentencing, the court stated it was imposing the upper term on count 1 because of its factual findings that Fluker’s conduct in the courtroom constituted an escape attempt or disruption; a factual issue neither submitted to the jury nor admitted by Fluker. The trial court sentenced Fluker as a second-strike offender to a total state prison term of seven years four months, consisting of six years (the three-year upper term doubled) on count 1, and 16 months (one-third the two-year middle term doubled) on count 2.
We concluded the imposition of the upper term on count 1 on the basis of Fluker’s courtroom conduct violated the Sixth Amendment as interpreted in Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856, making the sentence unconstitutional. We explained that because the trial court relied solely on the escape attempt, removing that circumstance from the analysis eliminated the court’s stated basis for the sentence.
At the resentencing hearing on remand, the trial court announced it intended to be guided by our opinion in making its sentencing decision and then heard argument from counsel. Defense counsel moved to dismiss the prior strike conviction for residential burglary (People v. Superior Court (Romero)(1996) 13 Cal.4th 497) and asked the court to impose the middle term on count 1, in view of Fluker’s advanced age (63 years) and lack of a violent criminal history. The court denied the Romero motion. Prior to sentencing Fluker, the court stated, it “now considers his prior convictions in imposing the upper term as allowed under Apprendi.” The court again imposed a state prison sentence of seven years four months, which included the three-year upper term doubled on count 1. Fluker appealed.
Fluker is not contesting on appeal the denial of his Romero motion. (See also § 1385.)
DISCUSSION
Rule 4.409 of the California Rules of Court provides, “Relevant criteria enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise.” (See also People v. Holguin (1989) 213 Cal.App.3d 1308, 1317-1318; People v. Castellano (1983) 140 Cal.App.3d 608, 615; People v. Jackson (1980) 103 Cal.App.3d 635, 639.)
As we noted in our earlier opinion, Fluker’s criminal record reflected numerous convictions, all of which were more than a decade old. His 1991 residential burglary conviction was submitted to the jury for the purposes of doubling his sentence on the present offenses under the Three Strikes law, and the jury found that prior conviction true. In addition to that offense, proof was offered of a 1982 arson conviction, a 1979 PCP possession for sale conviction, and a 1988 forgery conviction. Additional criminal history, including earlier and out of state criminal convictions, was detailed in the probation report. The report also indicated Fluker had a long-term drug abuse problem dating back to an injury sustained during military service.
Fluker contends the trial court abused its discretion in imposing the upper term on count 1. He does not challenge the court’s reliance on his prior convictions, but instead he argues the court simply used his prior convictions to justify imposing the upper term, without considering any mitigating factors. The record of the resentencing hearing is to the contrary.
It is clear that prior to resentencing Fluker, the trial court had reviewed Fluker’s criminal record, the probation officer’s report, as well as our earlier opinion in which we summarized Fluker’s criminal record and prior drug abuse. The sentencing hearing transcript also shows the court listened to defense counsel’s argument that Fluker was older and had previously committed exclusively nonviolent offenses. The court expressly found those factors urged by the defense did not count in Fluker’s favor. The court stated, albeit in the context of considering the Romero motion, that Fluker’s age was not a mitigating factor in view of his lengthy criminal record. Nor did the court view Fluker’s prolonged drug abuse as a mitigating factor because it was linked to Fluker’s recidivism, and he had never sought available treatment. “Drug use or drug addiction at the time of an offense is an example of a disputable factor in mitigation. The sentencing court may find that drug use did not significantly affect the defendant’s capacity to exercise judgment or, in the case of an addiction of long standing, that the defendant was at fault for failing to take steps to break the addiction.” (In re Handa (1985) 166 Cal.App.3d 966, 973-974; accord, People v. Gaston (1999) 74 Cal.App.4th 310, 322; People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) The trial court did not abuse its discretion in sentencing Fluker to the upper term based on his prior convictions.
In this latest appeal, Fluker also revisits his previous arguments that reforming the sentencing scheme for resentencing violates due process, equal protection and prohibitions against ex post facto law. As Fluker acknowledges, in Sandoval, the California Supreme Court fashioned a reformed sentencing procedure for resentencing hearings and rejected arguments concerning its constitutionality. Recognizing we are bound by Supreme Court authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456), Fluker makes these arguments to preserve them for further review.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: WOODS, Acting P. J., JACKSON, J.