Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR910406
Kline, P. J.
Roy Hinkle Johns (appellant) was convicted, pursuant to a guilty plea, of one count of attempted second degree robbery, with an enhancement for use of a firearm. On appeal, he contends his upper term sentence on the enhancement was imposed in violation of his constitutional right to a jury trial because he did not waive a jury trial on the aggravating facts upon which the court relied in imposing the upper term. We shall affirm.
Procedural Background
On August 22, 2006, appellant was charged by a first amended complaint with robbery (Pen. Code, § 211—count 1), with the special allegation that appellant personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)); burglary (§ 459—count 2); making a criminal threat (§ 422—count 3); and assault with a deadly weapon (§ 245, subd. (a)(1)—count 4). It was further alleged that, as to each count, appellant personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d), and section 1192.7, subdivision (c)(8), and personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
On November 3, 2006, appellant pleaded guilty to attempted second degree robbery (§§ 213, subd. (b), 211), a lesser offense of count 1, and admitted the special allegation of personal use of a firearm. The balance of the complaint was dismissed with Harvey waivers.
People v. Harvey (1979) 25 Cal.3d 754.
On January 18, 2007, the trial court sentenced appellant to the middle term of two years on count 1 and the upper term of 10 years on the enhancement, for a total of 12 years in state prison.
On January 29, 2007, appellant filed a motion to recall the sentence in light of Cunningham v. California (2007) 549 U.S. 270 (Cunningham), and the trial court recalled the sentence for a redetermination in light of the Cunningham decision.
On June 15, 2007, after a second sentencing hearing, the trial court decided not to deviate from the previously announced sentence.
On July 6, 2007, appellant filed a notice of appeal.
These facts are taken from the probation officer’s report.
“On August 17, 2006, Lake County Sheriff’s Deputies responded to the Middletown Pharmacy for a reported armed robbery. Deputies contacted the victims, Nikisha Williams, Valarie Iddings, Ralph Larson and Melissa Kinsel. In summary, all witnesses stated the defendant came into the pharmacy and told Nikisha Williams to give him all the Oxycodone they had. She asked if he was serious. At that time, he pulled out a small silver hand gun and said he was. She ran to the back room, where Valarie Iddings was. They attempted to close the door to the room, when the defendant pushed it partially open and said, ‘Don’t make me shoot you.’ Ralph Larson who was also in the room, helped push the door closed. Deputies spoke with Melissa Kinsel, who was a customer in the store when the defendant entered. Ms. Kinsel stated the defendant turned and pointed the gun at her, telling her, ‘Don’t move, don’t move.’ When the defendant went to the back room, she ran out of the store and called 911. On August 18, 2006, deputies responded to North Lake Medical Pharmacy. The defendant was inside the pharmacy attempting to fill a prescription for Oxycodone. The defendant became nervous and left. Sheriff Mitchell located the defendant attempting to flee the area on foot and he was taken into custody.”
Discussion
Alleged Violation of Appellant’s Constitutional Rights under Cunningham
Appellant contends his upper term sentence on the enhancement was imposed in violation of his constitutional rights because he did not waive a jury trial on the aggravating facts upon which the court relied in imposing the upper term.
I. Factual Background
Before sentencing, appellant submitted a written statement, in which he wrote:
“To the Honorable Judge Hedstrum [sic],
“On August 17, 2006 I Roy Johns attempted to rob Middletown Pharmacy of its oxycontin. What in fact happened, I robbed four families and a community [of] their well being, sleep, and freedom. I am sorry, not for just breaking the law, but for hurting all those inocent victums [sic]. I now ask the court for its mercy. I ask that I would be granted a drug program, even though I deserve to go to prison.
“Thank you, [¶] Roy Johns.”
Appellant then testified at the January 12, 2007, sentencing hearing as follows: In 2001, he injured his back in a car accident and was prescribed Oxycontin, to which he became addicted. He was suffering from withdrawal symptoms when he attempted to rob the pharmacy. The door in the pharmacy broke when the victims closed the door on him. The gun appellant used during the attempted robbery was not loaded. Appellant described the distance he was from the victims when he brandished the gun as “about half the distance between me and [defense counsel].”
On cross-examination, appellant testified that, at the time of the attempted robbery, he was taking about five to twenty Oxycontin pills a day; he obtained the pills from friends and from various doctors. He decided to commit a robbery, rather than go to a doctor for the pills because “I owed so many people [pills], I pretty much owed out my whole prescription.” He had been getting Oxycontin from people on the street and needed to pay them back by replacing the pills he had received from them. He committed the robbery both to get Oxycontin for himself and to pay back the individuals to whom he owed pills.
Appellant testified that he used a .25-caliber gun in the attempted robbery, which he had obtained from a friend the day before, when he decided to commit the robbery. Once in the pharmacy, the victims tried to go into a back room to get away from appellant. He tried to go through that door as it was being shut on him. “It’s a hollow core door. So it caved it in.” When appellant first walked into the main part of the pharmacy, he said he needed Oxycontin and also said he had a gun. He followed a victim to the back room because he knew the drugs were kept back there. Appellant acknowledged yelling at the victims, “Don’t make me shoot you.”
On January 18, 2007, the trial court sentenced appellant to the middle term of two years on the attempted robbery count and the upper term of 10 years on the firearm use enhancement.
In deciding to sentence appellant to the upper term on the enhancement, the trial court gave the following reasons: “Insofar as the [section] 12022.5 allegation, the mitigating circumstances [include] drug dependency and [no] significant prior criminal record and early plea existed under that allegation, that [firearm] use allegation. He has testified that the gun was unloaded, and there’s no evidence to dispute that claim. And that would be a mitigating feature insofar as the 12022.5.
“In aggravation, as far as the 12022.5, the defendant used the weapon in the attempted robbery by displaying the gun to the robbery victim Nakisha Williams. If that is all you had, it would call for the presumptive middle term, and that’s for the reason that that’s just part and parcel of that 12022.5 allegation.
“But the defendant went further than that when he committed the following acts: He threatened Nakisha Williams, Valerie Iddings and Ralph Larsen as they pushed the door closed to the room that they occupied. And he said to them as they were trying to push that door shut and that door was being broken, don’t make me shoot you. He also pointed the gun at Ms. Williams and Ms. Iddings as they tried to close the door. In addition, he pointed the gun at Melissa [Kinsel], the bystander, telling her, don’t move. Don’t move. Don’t move.
“The manner in which he used his weapon went well beyond the original display that is necessary to support the imposition of the enhancement in the first place. So what we have here is beyond the display when he first encountered the attempted robbery victim. He then terrorized and then threatened several people while using that gun.”
On June 15, 2007, the trial court resentenced appellant, after having recalled its original sentence pursuant to section 1170, subdivision (d), for reexamination in light of Cunningham, supra, 549 U.S. 270. Defense counsel asked the court to reduce the sentence on the firearm use enhancement (§ 12022.5) to the middle term. In denying that request, the court relied both on appellant’s written statement and his testimony at the January 2007 sentencing hearing.
In particular the court found, “[i]n terms of aggravation, insofar as the attempted robbery and the 12022.5 allegation, the manner in which the crime was carried out does demonstrate a certain degree of planning. That’s [California Rules of Court, rule] 4.421[(a)(8)].
All further rule references are to the California Rules of Court.
“The defendant did testify that he obtained the gun from a friend the day before the crime and he testified that he planned to commit the robbery the day before the crime.
“[¶] . . . [¶] Now, this was an attempted robbery for the purpose of obtaining a controlled substance which was committed against a pharmacy employee, that’s Penal Code section 1170.7 aggravating factor. [¶] . . . [¶] If you look at 4.421[(c)], that says that any other facts statutory [sic] declared to be circumstances in aggravation can be considered; and I view this attempted robbery with use of a gun committed against a pharmacy employee as an aggravating circumstance not only as to the robbery itself but also as to the use of the firearm.
“And that particular circumstance was proven by the plea entered because pharmacy was specified in the complaint and also by the defendant’s testimony.
“The defendant also testified that he committed the attempted robbery not only to get OxyContin for himself but also to get OxyContin for the people he owed.
“Looking at Rule 4.408[(a)], I view that as a circumstance in aggravation, albeit it’s got to be mitigated by the addiction. So it’s kind of found both when you’re considering mitigation and aggravation.
“[¶] . . . [¶] The use of the firearm is specifically not being considered as an aggravating factor insofar as the attempted robbery, and that’s to prevent dual use of the [section] 12022.5, [subdivision] (a) enhancement.
“Now, an additional aggravating feature insofar as the 12022.5, [subdivision] (a) allegation is the following: the defendant used the weapon in the attempted robbery by displaying the gun to the robbery victim, Nikisha Williams. In fact, he admitted to that both by way of his plea and inferentially in his testimony. That is enough to support imposition of a term [sic] for the 12022.5 enhancements.
“The defendant, though, went further than that when he committed the following acts, and those acts were threatening Nikisha Williams, Valerie Iddings, and Ralph Larson as they pushed the door closed to the room they occupied. The defendant said to them, Don’t make me shoot you. The defendant also pointed the gun at Ms. Williams and Ms. Iddings as they tried to close the door.
“In addition, he pointed the gun at Melissa Kinsel telling her, quote, Don’t move, don’t move, don’t move, end quote.
“So you look at this and he terrorized and threatened several people beyond the actual attempted robbery with the use of a gun.
“Now, this information was contained in Exhibit C which is offered by the defense and received in evidence. The question is whether that’s all properly considered by the Court in view of [Cunningham]. [¶] . . . [¶] So I’m looking at this more in terms of whether the defendant made admissions that show use of the firearm beyond that implicit by his—well, not implicit, by his admission, by plea, beyond the attempted robbery of Ms. Williams and the use there, did he go beyond that, were there admissions made by him.
Defendant’s Exhibit C is an August 17, 2006, report prepared by a Sheriff’s deputy, which includes summaries of interviews with the victims of the attempted robbery and other witnesses.
“And I look closely at the record here and the information that was contained in Exhibit C and offered by the defense and received in evidence. In large part that evidence was corroborated by the defendant’s plea of guilty to the attempted robbery, his admission of the 12022.5 allegation, and his testimony at the original sentencing hearing.”
The court then went on to read from portions of the transcript from the sentencing hearing, at which time appellant admitted brandishing a handgun and trying to go through the doorway into the back room when it was closed on him. The court also read appellant’s testimony that he had walked into the pharmacy, demanded Oxycontin, told the victims he had a gun, followed them to the back room, got stuck in the door, and yelled, “Don’t make me shoot you.”
The court also noted that, in his written statement, appellant said “he was attempting to rob the pharmacy of its OxyContin, that in fact he robbed four families and a community.”
The court concluded: “When you put all this together, his statements, his testimony, the admissions he made during the testimony, the manner in which he used the weapon, just based on his admissions went well beyond the display necessary to support the imposition of the enhancements of the—in the first place; and for that reason, the Court is not going to deviate from the term selected.
“Had there not been those admissions in testimony, if [Cunningham] is the law and there’s no reformation, I would have looked at this case differently.”
The court then re-imposed the middle term for the attempted robbery count and the upper term for the firearm use enhancement.
II. Legal Analysis
In People v. French (2008) 43 Cal.4th 36, 48-49 (French), the California Supreme Court held that the “defendant, by entering into a plea agreement that included the upper term as the maximum sentence, did not implicitly admit that his conduct could support that term,” since, such a defendant “reasonably expects to have the opportunity to litigate any matters related to the trial court’s choice of sentence—including the existence of aggravating and mitigating circumstances—at the sentencing hearing.” Since nothing in the record indicated that the defendant had admitted the truth of the acts as recited by the prosecutor, “defense counsel’s stipulation to the factual basis [for the plea] cannot reasonably be construed as an admission by defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham.” (Id. at p. 51.)
The court did not directly address the situation presented here, in which appellant actually made admissions that support the upper term. Regarding such a situation, the court stated: “In light of our conclusion that no admission occurred in the present case, we need not reach the question whether (or under what circumstances) a knowing and intelligent waiver [of the right to a jury trial on the facts admitted] is required before a defendant’s admission can be used to satisfy Sixth Amendment requirements under Cunningham.” (French, supra, 43 Cal.4th at p. 51, fn. 7.) The court did note, however, that several other jurisdictions had held that such a waiver is required. (Ibid., citing State v. Brown (2006) 212 Ariz. 225 [129 P.3d 947, 952-953]; People v. Isaacks (Colo. 2006) 133 P.3d 1190; State v. Dettman (Minn. 2006) 719 N.W.2d 644, 650-651.)
Here, we need not decide this question, left open by our Supreme Court, because, even assuming appellant’s testimony—in which he admitted several aggravating factors—should not have been relied on by the trial court in sentencing him to the upper term on the section 12022.5 enhancement without an explicit waiver of appellant’s jury trial right, the upper term nevertheless was proper. That is because appellant was on summary probation at the time he committed the present offense. (See People v. Towne (2008) 44 Cal.4th 63 (Towne); see also rule 4.421(b)(4) [that a defendant committed current offense while on probation constitutes an aggravating circumstance for sentencing purposes].)
At our request, the parties submitted supplemental briefing addressing the relevance of the fact that appellant was on probation at the time he committed the present offense to the issue raised on appeal.
In Towne, supra, 44 Cal.4th 63, our Supreme Court held, inter alia, “that the federal constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstance that a defendant was on probation or parole at the time of the offense . . . .” (Id. at p. 79.) The court stated that this aggravating circumstance is, like prior convictions, an aspect of recidivism, explaining: “A defendant who has committed another offense after a prior conviction, after serving a prison term, or while on probation or parole, demonstrates that he or she is less amenable to rehabilitation than a person who has not done so and, accordingly, such a defendant is more deserving of punishment.” (Id. at p. 80.)
The court further held that “the aggravating circumstance that a defendant’s prior performance on probation or parole was unsatisfactory may be determined by a judge, so long as that determination is based upon the defendant’s record of one or more prior convictions.” (Towne, supra, 44 Cal.4th at pp. 70-71.)
In the present case, the probation report reflects that appellant was on summary probation, following a conviction for disorderly conduct (§ 415), at the time he committed the present offense. The probation report listed this fact as a circumstance in aggravation with respect to the attempted robbery offense itself, not the enhancement. At the first sentencing hearing, in denying probation, the court noted, inter alia, that appellant’s “prior performance on summary probation was not satisfactory. He was on summary probation at the time of the offense.” (See rule 4.414(b)(2).) In determining the term for the attempted robbery count, the court also stated, “He was on summary probation when the crime was committed, but that’s given limited weight. It was a 415 offense. That’s about as insignificant as you can get as far as misdemeanors in terms of the charge. His prior performance on summary probation was not satisfactory. That also is given limited weigh[t].” The court then sentenced appellant to the middle term on the attempted robbery count.
The probation report states that on August 13, 2003, appellant was arrested for spousal abuse (§ 273.5, subd. (a)); on April 11, 2005, he was placed on summary probation; on August 25, 2006 (shortly after his arrest for the present offense), he violated his probation; and on November 3, 2006, probation was terminated, after appellant admitted the probation violation.
The court did not consider this aggravating circumstance when deciding whether to sentence appellant to the upper term on the section 12022.5 enhancement. Rather, at the first sentencing hearing, in deciding to impose the upper term, the court relied on the fact that “[t]he manner in which he used his weapon went well beyond the original display that is necessary to support the imposition of the enhancement in the first place. So what we have here is beyond the display when he first encountered the attempted robbery victim. He then terrorized and then threatened several people while using that gun.” The court found that mitigating circumstances included drug dependency, no significant prior criminal record, and an early plea. The court also cited appellant’s testimony that the gun he used was unloaded.
At the second sentencing hearing, the court reiterated in more detail the circumstances it found in aggravation with respect to the enhancement, which included “[t]he manner in which the crime was carried out indicates planning” (rule 4.421(a)(8)); the attempted robbery was “for the purpose of obtaining a controlled substance and was committed against a pharmacy employee,” a statutory aggravating factor under section 1170.1 (rule 4.421(c)); appellant was attempting to get oxycontin for both himself and the people he owed (rule 4.408(a) [court may apply additional criteria reasonably related to decision being made]), though this circumstance was mitigated by appellant’s addiction; and appellant threatened and terrorized several people beyond the actual attempted robbery with the use of a gun. (See rule 4.421(a)(1).)
In People v. Black (2007) 41 Cal.4th 799, 816, our Supreme Court 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.” The court further explained: “[S]o 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 factors underlying those circumstances have been found to be true by a jury.” (Id. at p. 813; see also People v. Stuart (2008) 159 Cal.App.4th 312, 314.)
In People v. Stuart, supra, 159 Cal.App.4th at page 314, although the trial court did not mention the defendant’s prior convictions as a reason for imposing the upper term, the appellate court stated that since those convictions qualified as an aggravating circumstance, “the trial court’s finding of additional aggravating circumstances did not violate defendant’s constitutional rights under Black.”
In the present case, because the record shows that appellant was on summary probation at the time he committed the present offense—a valid recidivist factor—he was eligible for an upper term sentence on the section 12022.5 enhancement. (See Towne, supra, 44 Cal.4th at pp. 79-80.) The trial court, therefore, was entitled to rely on the other factors it found at the sentencing hearings as circumstances in aggravation in deciding to impose the upper term. (See People v. Black, supra, 41 Cal.4th at p. 813; People v. Stuart, supra, 159 Cal.App.4th at p. 314.)
Thus, even assuming appellant’s admissions could not be used to establish aggravating circumstances for purposes of imposing the upper term (cf. French, supra, 43 Cal.4th at p. 51, fn. 7), imposition of that term did not violate his Sixth Amendment rights.
Disposition
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.
The probation report apparently does not state the offense for which appellant was convicted in the prior case. However, at the second sentencing hearing, both the court and defense counsel noted that appellant’s prior conviction was for a violation of section 415, “a lesser related offense he pled to on a [section] 273.5.”