Opinion
G038860
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. ERIC PAUL McLELLAN, Defendant and Appellant
Edward J. Haggerty, 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, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
In a prior opinion, we remanded this case for resentencing in light of Cunningham v. California (2007) 549 U.S. ___ (Cunningham) on the sole ground the trial court imposed an upper term sentence based on aggravating circumstances found true by the court rather than by a jury beyond a reasonable doubt. (People v. McLellan (Apr. 5, 2007, G036495) [nonpub. opn.].) We otherwise affirmed the judgment. (Ibid.)
On remand, the trial court selected the upper term sentence citing defendant Eric Paul McLellans prior criminal convictions (Cal. Rules of Court, rule 4.421(b)(2)) as the basis for imposing an upper term sentence. Defendant appealed, contending the upper term sentence violated his constitutional rights.
We affirm. In light of People v. Black (2007) 41 Cal.4th 799 (Black II), the trial court did not err by imposing the upper term sentence because defendants five prior convictions rendered him eligible for that sentence.
BACKGROUND
Defendant was charged in an information with one count of felony possession of heroin in violation of Health and Safety Code section 11350, subdivision (a). The information alleged that in 1988 and again in 1992, defendant had been convicted of residential burglary, a serious and violent crime within the meaning of Penal Code section 667, subdivisions (d) and (e)(2)(A), and section 1170.12, subdivisions (b) and (c)(2)(A). (All further statutory references are to the Penal Code unless otherwise specified.) The information further alleged, pursuant to section 667.5, subdivision (b), that defendant previously had served four separate prison terms of one year and more, and that defendant did not remain free for a period of five years of both prison custody and the commission of each charged crime. The trial court granted defendants motion to bifurcate the trial on his prior convictions and prior prison terms.
At trial, evidence showed that on June 14, 2005, defendant and Stacy Alonzo were detained by law enforcement officials in the parking lot of a motel in Westminster. During a search of a room in the motel defendant had rented, law enforcement officials found (1) a red bag containing two syringes, on the floor along a wall of the room; (2) empty plastic bags, a can of butane lighter fluid, and a pair of blue thongs, all strewn across the floor in the same area as the red bag; (3) a bindle containing 167 milligrams of heroin, in plain view on top of the refrigerator; (4) 1.6 grams of heroin between the nightstand and the bed; and (5) a social security card bearing defendants name, on a shelf in the nightstand.
At the time they were detained, defendant and Alonzo were standing next to a car in which a toddler was seated in a car seat. A police officer searched the car and found (1) several hypodermic needles strewn on the floorboard, throughout the car, among toys and other items; (2) the bottom portion of an aluminum can containing burnt residue, underneath the drivers seat; and (3) a womans purse on the floorboard behind the drivers seat, containing a glass smoking pipe of a type used for smoking methamphetamine, a check card bearing the name "Stacy Alonzo," and .04 grams of methamphetamine in a small baggie.
The jury found defendant guilty as charged. The trial court found the prior conviction and prior prison term allegations true. Defendant filed a motion requesting the court to dismiss one or both of defendants prior conviction allegations for sentencing purposes pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court exercised its discretion pursuant to section 1385, by striking one of defendants prior conviction allegations and sentencing defendant to a total prison term of 10 years. The sentence was based on the court (1) imposing the three-year upper term for the possession of heroin; (2) doubling that upper term pursuant to section 667, subdivisions (d) and (e)(1) and section 1170.12, subdivisions (b) and (c)(1); and (3) adding four consecutive one-year terms pursuant to section 667.5, subdivision (b), representing each of defendants four prior prison terms.
The court cited several aggravating factors relating to defendant in support of its decision to impose the upper term sentence. (Cal. Rules of Court, rule 4.421(b)(2) [defendants prior convictions are numerous]; rule 4.421(b)(3) [defendant has served a prior prison term]; rule 4.421(b)(4) [defendant was on parole at the time the crime was committed]; rule 4.421(b)(5) [defendants prior performance on parole was unsatisfactory].)
Defendant appealed from the judgment of conviction, arguing (1) the trial court violated defendants constitutional rights by excluding a witnesss hearsay statement to police because the statement did not fall within the hearsay exception; (2) defendants constitutional right against self-incrimination was violated by the prosecutors closing argument; (3) the prosecutors closing argument contained factual statements she knew to be false; (4) the trial court abused its discretion by refusing to dismiss both prior conviction allegations; (5) the trial courts imposition of prior prison term enhancements violated defendants constitutional and statutory rights; and (6) the trial court erroneously imposed an upper term sentence based on aggravating circumstances found true by the court rather than by a jury beyond a reasonable doubt. This court affirmed the judgment, but remanded the matter to the trial court for resentencing in light of Cunningham, supra, 549 U.S. ___ , on the sole ground the trial court imposed an upper term sentence based on aggravating circumstances found true by the court rather than by a jury beyond a reasonable doubt. (People v. McLellan, supra, G036495.)
Following remand, the trial court held a resentencing hearing in June 2007. After argument, the court reimposed a total prison term of 10 years by again doubling the upper term sentence and adding four one-year terms for each of the four prior prison term enhancement allegations found true by the court within the meaning of section 667.5, subdivision (b). The trial court explained its decision to again impose the upper term, stating, "the court thinks that there is a recidivism exception to the jury trial requirement of an aggravating factor. And the court bases the upper term on the defendants prior criminal convictions. And the court can base the upper term on a single aggravating factor, that being the only one that would be applicable in light of Cunningham." (Italics added.) The court further stated that under rule 4.421(b)(2) of the California Rules of Court, "defendants prior convictions as an adult are numerous. That would be the prior conviction factor that the court feels it is proper in justifying the upper term." Defendant appealed.
One month after the resentencing hearing, the California Supreme Court issued its opinion in Black II, supra, 41 Cal.4th 799 after that case had been remanded back to the California Supreme Court from the United States Supreme Court for reconsideration in light of Cunningham, supra, 549 U.S. ___ . (Black II, supra, 41 Cal.4th at p. 805.)
DISCUSSION
Defendant contends the reimposition of the upper term sentence violated his constitutional rights under Blakely v. Washington (2004) 542 U.S. 296 and Cunningham, supra, 549 U.S. ___ . For reasons explained post, we disagree.
In Black II, the California Supreme Court held: "Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in Californias current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial courts exercise of its discretion in selecting the appropriate term from among those authorized for the defendants offense. Although the DSL [determinate sentencing law] does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendants 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 defendants record of prior convictions." (Black II, supra, 41 Cal.4th at pp. 815-816.)
Therefore, the California Supreme Court concluded, "as 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 [v. New Jersey (2000) 530 U.S. 466, 490] 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 defendants right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.) The Supreme Court further concluded the defendant was not entitled to a jury finding on whether his prior convictions were numerous or increasingly serious. (Id. at pp. 819-820.) The court stated, "[t]he determinations whether a defendant has suffered prior convictions, and whether those convictions are `numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is `quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court." (Ibid.)
Here, excluding consideration of the four prior convictions for which the court imposed a one-year term each under section 667.5, subdivision (b) (prior prison term enhancement), the record shows defendant has suffered the following prior misdemeanor convictions: (1) driving under the influence in violation of Vehicle Code section 23152, subdivision (a) in 1988; (2) possession of a controlled substance in violation of Health and Safety Code section 11350 in 1989; (3) possession of a hypodermic needle in violation of Business and Professions Code section 4149 in 1995; (4) driving under the influence in violation of Vehicle Code section 23152, subdivision (a) in 2003; and (5) driving under the influence in violation of Vehicle Code section 23152, subdivision (b) in 2003.
See section 1170, subdivision (b) [court may not impose an upper term by using the fact of any enhancement upon which the sentence is imposed]; Cunningham, supra, 549 U.S. at p. ___ ["A fact underlying an enhancement cannot do double duty; it cannot be used to impose an upper term sentence and, on top of that, an enhanced term"]; People v. McFearson (2008) 158 Cal.App.4th 810, 816 [trial court erred when it used the defendants "prior conviction to impose an aggravated sentence and then used the prison term served as a result of that conviction to enhance his sentence by one year pursuant to section 667.5, subdivision (b)"].
Because the probation report states defendant was convicted of a third misdemeanor in 2003 but fails to identify the offense, we do not consider it.
Five prior convictions constitute "numerous" prior convictions within the meaning of rule 4.421(b)(2) of the California Rules of Court. (See People v. Stuart (2008) 159 Cal.App.4th 312, 314 [six prior misdemeanor convictions "plainly `numerous" within meaning of rule 4.421(b)(2) and thus proper basis for aggravated term]; People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are "numerous" under former rule 421(b)(2)].) The trial court therefore did not err by imposing the upper term sentence because the record established defendant was eligible for that sentence.
Defendant contends his constitutional rights were violated because he was resentenced on remand under section 1170s sentencing scheme as that statute was judicially reformed in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) to "eliminate[] the middle term presumption." The California Supreme Courts decision in Sandoval, supra, 41 Cal.4th 825, was not filed until July 19, 2007—one month after defendant was resentenced. Thus, defendant could not have been resentenced based on section 1170 as it was later reformed in Sandoval.
Defendant also points out that the Legislature passed Senate Bill No. 40 (2007-2008 Reg. Sess.), effective March 30, 2007, which amended section 1170 to give trial judges the discretion to impose any of the three available sentencing terms without additional factfinding. Defendant contends the retroactive application of section 1170, as amended, to his case would violate his constitutional rights. The record does not show, however, the trial court retroactively applied section 1170, as revised effective March 30, 2007, in resentencing defendant. Indeed, the trial court explained that the upper term sentence was justified because it found defendant had sustained numerous prior convictions.
Finally, we reject defendants argument Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825 were wrongly decided. This court is bound by the Supreme Courts decision in those cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We find no error.
DISPOSITION
The judgment is affirmed.
We Concur:
RYLAARSDAM, ACTING P. J.
IKOLA, J.