Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge, Super.Ct.No. RIF125507
Kevin D. Sheehy, 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, Senior Assistant Attorney General, and Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of transportation of methamphetamine (count 1—Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine (count 2—Health & Saf. Code, § 11377, subd. (a)), transportation of heroin (count 3—Health & Saf. Code, § 11352, subd. (a)), and possession of heroin (count 4—Health & Saf. Code, § 11350, subd. (a)). Defendant admitted that he had suffered five prior prison terms and four prior strike convictions. (Pen. Code, §§ 667.5, subd. (b), 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) Prior to sentencing, the trial court struck three of defendant’s prior strike convictions. Thereafter, the court sentenced defendant to the upper term on counts 3 and 4. On appeal, defendant contends the trial court violated his Sixth Amendment (U.S. Const., 6th Amend.) right, via the Fourteenth Amendment (U.S. Const., 14th Amend.), to a jury trial finding on those factors used in imposing the upper term. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).) More specifically, defendant maintains that the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 incorrectly determined that a finding of one prior conviction renders a defendant eligible for an upper term sentence and that a trial court may thereafter engage in fact finding as to other aggravating factors. Defendant urges us to disregard these decisions. We decline to do so. We therefore determine that the trial court acted appropriately in imposing the aggravated term and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
On August 17, 2005, Officer Joseph Simpson of the Riverside Police Department was patrolling Central Avenue in Riverside when he noticed defendant driving eastbound in a Ford Ranger with a license plate number partially obscured by a ball tail hitch. Since this constituted a Vehicle Code violation, Officer Simpson initiated a traffic stop by turning on his full overhead emergency lights. Defendant failed immediately to yield, turning onto another street. Officer Simpson followed, activating his siren. Defendant continued his attempts to evade the officer, making another turn, eventually pulling up onto and driving on the sidewalk. Defendant stopped his vehicle at what the officers later determined to be his home, getting out of the vehicle to run. Officer Simpson exited his patrol car and ordered defendant to stop; however, defendant continued to flee around the corner of the house. When Officer Simpson arrived around the corner, he could not see defendant. Within a few moments, however, Officer Simpson noticed someone hiding behind a truck further down the street. Officer Simpson again yelled at defendant to surrender, but defendant kept running. Officer Simpson finally caught defendant at the terminus of a cul-de-sac. He ordered defendant to get on the ground and defendant complied. He then placed defendant under arrest.
Other officers arrived on the scene to help Officer Simpson. A search of defendant’s vehicle uncovered a beanie in which were wrapped an eyeglass case containing two syringes, a scale, and some methamphetamine. One of the syringes contained a brown liquid which tested positive for heroin. A tin containing black tar heroin was found on the grass in the front yard on the path along which defendant had run from his vehicle.
Prior to sentencing, and when considering whether to grant defendant’s motion to strike his prior strike convictions, the court recounted defendant’s entire criminal record, noting this is a “long record.” The court reiterated that defendant’s “record is long . . . since [19]78, [he has] pretty much continuously been in trouble.” Nonetheless, the court struck three of defendant’s four prior strike convictions, finding that he had no record of violence and his crimes were of decreasing seriousness.
The court imposed an aggregate sentence of 17 years, composed of the upper term of five years on the principal term (count 3), doubled due to the strike prior; the upper term doubled on count 4, stayed pursuant to section 654; one-third the midterm of count 2, one year, doubled due to the strike prior, consecutive to count 3; one-third the midterm of count 1 doubled, stayed pursuant to section 654; and one additional, consecutive year for each of defendant’s five admitted prison priors.
The abstract of judgment filed June 30, 2006, and the minute order of June 27, 2006, reflect an aggregate sentence of 15 years, showing the imposition of sentence on only three prior prison terms. This would appear to be a more accurate reflection of the court’s initial intention to impose sentence on only three of the prison priors because three of the five prior prison terms derived from the same conviction date. Thus, it is apparent the court misspoke when it orally imposed five consecutive years for five separate prison priors. (People v. Harrison (2005) 35 Cal.4th 208, 226.)
II. DISCUSSION
A. Imposition of the Upper Terms Was Proper
Defendant claims the trial court erred in imposing the upper terms on counts 3 and 4 and that the matter must be remanded for resentencing in light of the United States Supreme Court’s recent decision in Cunningham (imposition of upper term sentence based on facts found by judge under California’s determinate sentencing law (DSL) violates Sixth and Fourteenth Amendment right to jury trial). For the reasons explained below, we conclude that the trial court’s imposition of the upper term was proper.
“[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 127 S.Ct. at p. 860.) In Cunningham, the United States Supreme Court held that by placing sentence-elevating factfinding within the trial judge’s province, California’s DSL violates a criminal defendant’s right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, supra, at p. 860.) The Cunningham court explained that, because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the California DSL violates the bright-line rule in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Cunningham, supra, at p. 868.) Quoting Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) for the proposition that “‘[t]he “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,’” the Cunningham court concluded that “[i]n accord with Blakely, therefore, the middle term prescribed in California statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, at p. 868.)
Cunningham did reaffirm the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi that “[e]xcept for 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.’ [Citation.]” (Cunningham, supra, 127 S.Ct. at p. 868, italics added, quoting Apprendi, supra, 530 U.S. at p. 490.) The Almendarez-Torres/Apprendi exception is sufficiently broad to encompass all matters ascertainable from the face of the prior judgment of conviction. (Black, supra, 41 Cal.4th at pp. 818-820; People v. McGee (2006) 38 Cal.4th 682, 707-709; People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) The United States Constitution does not mandate a jury trial on prior convictions, and any right to a jury trial would be purely statutory. (Apprendi, supra, at pp. 487-490; People v. Epps (2001) 25 Cal.4th 19, 23; see § 1025.) By statute in California, a defendant is afforded a jury trial only as to the fact of those prior convictions alleged in the accusatory pleading as statutory sentence enhancements. (§ 1025; People v. Epps, supra, at pp. 29-30.) Prior convictions considered as aggravating factors for the purpose of imposing the upper term may be determined by the court upon facts shown in the probation report, as the trial court did here, and need be established only by a preponderance of the evidence. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) “[A]s 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, supra, at p. 812.)
Here, as shown in the probation report, defendant had a prior criminal record which included 16 adult convictions, five of which were felonies. He admitted the five prior felony convictions. (Cunningham, supra, 127 S.Ct. at p. 868.) Even excepting the one prior felony conviction which was used as a prior strike, the trial court still had before it defendant’s remaining four prior felony convictions. In imposing the upper terms, the trial court recognized that defendant had a “long [criminal] record” and “[had] pretty much continuously been in trouble [since 1978].” The court noted that “in this case the factors for the aggravated term far outweigh the mitigating term, actually, I can’t think of anything mitigating other than he hasn’t hurt anybody.” The trial court imposed the aggravated term based solely on defendant’s prior record: “As I mentioned because of his long history, I find the aggravating factors outweigh the mitigating factors.” Therefore, the trial court had before it at least a single aggravating factor for which imposition of the upper terms was proper.
Defendant cites People v. Diaz (2007) 150 Cal.App.4th 254, 258, 270-273, for the proposition that appellate courts should simply impose the middle term for defendants whose upper term sentences were in violation of Cunningham. However, Diaz’s ruling has essentially been overruled by the California Supreme Court in People v. Sandoval, supra, 41 Cal.4th 825. Moreover, Diaz itself is no longer citable as published law because the California Supreme Court has granted review in that case. (Cal. Rules of Court, rule 8.1105(e)(1).) Furthermore, as discussed above, we do not believe defendant’s sentence is in violation of Cunningham.
Defendant cites Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, for the proposition that this court must disregard California Supreme Court precedent which is in contradiction to previously decided issues by the United States Supreme Court on federal questions. Initially, we disagree that Black is in contradiction with Cunningham. Rather, Black expressly implements the California Supreme Court’s interpretation of Cunningham. And, Auto Equity Sales, Inc. requires that appellate courts follow the precedent established by the California Supreme Court: “The decisions of this court are binding upon and must be followed by all the state courts of California.” (Auto Equity Sales, Inc. v. Superior Court, supra, at p. 455.) We therefore decline defendant’s invitation.
Defendant cites People v. Whitfield (1996) 46 Cal.App.4th 947, 957 as support for this court’s power to ignore California Supreme Court precedent when considering contravening United States Supreme Court authority. However, in Whitfield, the Court of Appeal found that the United States Supreme Court had “unequivocally” and “clearly” decided the issue contrary to the California Supreme Court and noted that every federal appeals court had found likewise. (Id. at pp. 955, 957.) Again, we do not believe that the rule in Black is “unequivocally” or “clearly” in contradiction to that in Cunningham.
While People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 702-703, acknowledged that United States Supreme Court decisions are binding on state courts when federal issues are involved, it also recognized that we are bound by California Supreme Court precedent “‘unless the United States Supreme Court has decided the question differently. [Citation.]’” “‘[I]t is only the ratio decidendi of a Supreme Court opinion that is fully binding as a precedent on the lower courts of this state. [Citations.]’” (Id. at p. 703, quoting Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 212.) “‘The ratio decidendi is the principle or rule which constitutes the ground of the decision, and it is this principle or rule which has the effect of a precedent. It is therefore necessary to read the language of an opinion in light of its facts and the issues raised, to determine . . . which statements of law are necessary to the decision, and therefore binding precedents . . . .’” (People v. Superior Court (Williams), supra, at p. 703, quoting 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 783, p. 753, quoted in Bunch v. Coachella Valley Water Dist., supra, at p. 212.) None of the United States Supreme Court cases cited by defendant stand directly for the proposition that a trial judge may not impose an aggravated term based solely on a defendant’s criminal record. Indeed, they stand for the exact opposite proposition.
Apprendi and its progeny considered only issues relating to facts, not including prior convictions, found by a judge and utilized to increase a defendant’s punishment. Those decisions did not deal with cases in which one of the aggravating factors used to increase a defendant’s sentence was the fact of his prior conviction(s). Indeed, most of those cases reflect that the defendants did not have any prior convictions at all. Only in Ring and Booker did defendants have any prior convictions, but in neither case were those prior convictions used as aggravating factors to justify an increase in the defendant’s sentence. In Ring, defendant’s minimal criminal record was considered a mitigating factor. (Ring, supra, 536 U.S. at p. 595.) Even in Booker, where defendant Booker did have a prior criminal history, this was not used to enhance his base term and, hence, was not deemed relevant for Sixth Amendment purposes. (Booker, supra, 543 U.S. at pp. 227, 235.) Defendant Fanfan apparently did not have a prior criminal record. (Id. at pp. 228-229.)
Apprendi, supra, 530 U.S. 466; Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] (Ring); Blakely, supra, 542 U.S. 296; United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621] (Booker); Cunningham, supra, 127 S.Ct. 856.
Rather, as we note above, Cunningham is merely the latest iteration in a series of cases coming out of the United States Supreme Court which have reaffirmed the principle that trial court judges may increase a defendant’s sentence based on recidivist factors. Unless and until such time as the United States Supreme Court determines that our state Supreme Court has incorrectly determined this issue, we are bound to follow Black.
B. We Decline Defendant’s Invitation to Revise the Court’s Oral Pronouncement That Should Defendant Be Paroled, He Would Remain on Parole for Life
Section 1170, subdivision (c) requires trial courts to “inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000.” Defendant is correct that because he received a determinate sentence under section 1170, section 3000, subdivision (b)(1) mandates that his period of parole when released not exceed three years. The trial court erroneously proclaimed to defendant that “[i]f you ever do get out on parole, you’ll be on parole for life.” However, defendant cites no authority for this court’s power to edit the oral pronouncements of a trial court contained in the reporter’s transcript. Here, the incorrect statement regarding defendant’s duration of parole when released does not appear in the minute order or the abstract of judgment; yet these are the very documents the parole authorities would look to when determining defendant’s period of parole. Indeed, it is obvious here that the court’s misstatement was based on defendant’s initial exposure to an indeterminate sentence of 55 years to life prior to the court’s striking of three of his four prior strike convictions. However, the court subsequently sentenced him to a determinate sentence of 15 years. Parole authorities will not have before them the reporter’s transcript of the sentencing hearing; thus, there should be no confusion over defendant’s proper period of parole once he is released.
III. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.