Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge, Super. Ct.No. SWF012106.
Lauren E. Eskenazi, 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, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant Brian Meekins of grand theft, in violation of Penal Code section 487, subdivision (a) (count 1), and receipt of stolen property, in violation of section 496, subdivision (a) (count 3). He was acquitted of a burglary charge. (§ 459.)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was given a three-year upper term sentence on both count 1 and count 3, and stayed the sentence on one of the counts pursuant to section 654. Sentence was imposed but stayed, and defendant was put on probation.
As both parties acknowledge, there is some confusion regarding which count the court deemed to be the principle count and on which count the court granted a stay under section 654. The transcript of the oral proceedings is not clear on this point and the court’s July 20, 2006, minute order states that count 4 is the principle count. However, defendant was only charged with three counts. Defendant asserts that the court deemed count 1 to be the principle count. The Attorney General does not dispute this point.
On appeal, he contends that his conviction for receiving stolen property must be reversed because he was convicted of theft of the same property he received and, under section 496, subdivision (a), “no person may be convicted both pursuant to this section and of the theft of the same property.” The Attorney General concedes the error. We agree and reverse the conviction on count 3.
Defendant also contends that the upper term sentence violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because the trial court, in reaching its upper term sentencing decision, made factual findings that aggravating factors existed.
I. FACTS
Donald Bean, a farmer in the Nuevo area, testified that his neighbor, Richard Devoss, was moving to Texas in May 2005. Devoss was selling sprinkler pipe and scrap metal for recycling. On the evening of May 16, 2005, Bean saw a white truck and trailer pull into the Devoss farm. Later that evening, he saw the truck leave. Its lights were off and it was followed by a small pickup truck with its lights off. The trailer was filled with cut up pieces of sprinkler pipe, and pieces were falling off the trailer. Bean became suspicious and followed the truck to a mobile home. He called the farm manager and police went to the home and arrested defendant.
II. RECEIVING STOLEN PROPERTY
Defendant contends that the conviction on count 3, for receiving stolen property, must be reversed because he was also convicted of stealing the same property under count 1. The Attorney General agrees. We reverse this conviction.
Defendant was convicted under count 1 with the theft of the property taken from the Devoss farm. He was convicted in count 3 with receiving the same stolen property under section 496, subdivision (a). That statute and subdivision states: “A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.” (Italics added.) Pursuant to this language, a “thief may be convicted either of the theft or (upon a suitable showing) of receiving, but not both.” (People v. Strong (1994) 30 Cal.App.4th 366, 373.) “A common law rule likewise prohibits separate convictions for stealing and receiving the same property.” (People v. Garza (2005) 35 Cal.4th 866, 874; see also People v. Jaramillo (1976) 16 Cal.3d 752, 757 [it is “a fundamental principle that one may not be convicted of stealing and of receiving the same property”].) Accordingly, the conviction on count 3 cannot stand.
III. SENTENCING
Defendant was sentenced on July 20, 2006, about six months before Cunningham was decided. The trial court considered the probation report and character witnesses. The probation report recommended that defendant be reinstated on probation. Although the trial court was surprised by this recommendation, it followed it. However, it also chose an upper term sentence and suspended imposition of the sentence. It commented that such a sentence means that if there is any future probation violation, defendant would serve three years in state prison.
With regard to the upper term choice, the trial court said: “The Court finds that this is an aggravating case in that the defendant was on felony probation. The commission of this offense is the same kind of offense. It appears to the Court that the . . . order of the Court and the previous grant of felony probation really had no force and effect impressing on [defendant] to conduct himself according to the law.” Nevertheless, the court reinstated defendant on probation.
On appeal, defendant contends the upper term sentence choice violated Cunningham.
A. Background
On January 22, 2007, the Supreme Court decided that California’s determinate sentencing law violates a defendant’s right to a trial by jury because it authorizes the trial judge, not the jury, to find facts that expose defendant to an upper term sentence. The court explained: “As this Court’s decisions instruct, the 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. [Citations.] ‘The relevant “statutory maximum,”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ [Citation.] In petitioner’s case, the jury’s verdict alone limited the permissible sentence to 12 years. Additional factfinding by the trial judge, however, yielded an upper term sentence of 16 years. The California Court of Appeal affirmed the harsher sentence. We reverse that disposition because the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial.” (Cunningham, supra, 127 S.Ct. at p. 860.)
Cunningham cites Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). In that case, the court held that the “statutory maximum” is the maximum sentence the court could impose without making any additional factual findings. (Ibid.)
Cunningham extended to California’s determinate sentencing law the principles enunciated in Jones v. United States (1999) 526 U.S. 227 [119 S.Ct. 1215, 143 L.Ed.2d 311] (Jones) and Apprendi v. New Jersey (2000) 530 U.S. 466, 476 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi).
In Jones, the Supreme Court held that, “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” (Jones, supra, 526 U.S. at p. 243, fn. 6.)
Apprendi states: “In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ [Citations.]” (Apprendi, supra, 530 U.S. at p. 490.)
The prior conviction exception is based on Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] (Almendarez-Torres). Cunningham reaffirmed the prior conviction exception but did not directly discuss it. Thus, under the Almendarez-Torres exception to the Apprendi rule, a sentence in excess of the statutory maximum may be imposed based on a judge’s finding that a defendant had a prior conviction.
In People v. McGee (2006) 38 Cal.4th 682 (McGee), our Supreme Court considered “(1) the breadth or scope of the so-called Almendarez-Torres exception applicable to an increase in sentence based upon a defendant’s recidivism, and (2) the specific nature of the inquiry that is required to be made under California law in this matter.” (Id. at p. 702.) The court concluded: “As noted ante, the Court of Appeal in the present case narrowly construed the Almendarez-Torres exception for recidivist conduct as preserved by Apprendi. In so holding, however, we believe the Court of Appeal improperly minimized the distinction between sentence enhancements that require factfinding related to the circumstance of the current offense, such as whether a defendant acted with the intent necessary to establish a ‘hate crime’—a task identified by Apprendi as one for the jury—and the examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction—a task to which Apprendi did not speak and ‘the type of inquiry that judges traditionally perform as part of the sentencing function.’ [Citation.]” (Id. at pp. 708-709.)
The court in McGee, supra, 38 Cal.4th 682 specifically approved cases such as People v. Thomas (2001) 91 Cal.App.4th 212 (Thomas), which held that: “In terms of recidivism findings that enhance a sentence and are unrelated to the elements of a crime, Almendarez-Torres is the controlling due process authority. Almendarez-Torres does not require full due process treatment of an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. Apprendi did not overrule Almendarez-Torres. The language relied upon by defendant in Apprendi, ‘[o]ther than the fact of a prior conviction,’ refers broadly to recidivism enhancements which include section 667.5 prior prison term allegations.” (Id. at pp. 222-223.)
Cunningham rejected the California Supreme Court’s defense of the determinate sentencing law in People v. Black (2005) 35 Cal.4th 1238 (Black I). (Cunningham, supra, 127 S.Ct. at pp. 863-871.) It therefore found that California’s determinate sentencing law violates the right to a jury trial on any fact, other than a prior conviction, which increases the sentence. (Id. at p. 860.)
Finally, the California Supreme Court recently addressed the effect of Cunningham on California’s sentencing law in People v. Black (2007) 41 Cal.4th 799 (Black II). In Black II, the court held that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813, fn. omitted.) One such circumstance in that case was the fact reported in defendant’s probation report that his “‘prior convictions . . . are numerous or of increasing seriousness.’” (Id. at p. 818.) The defendant argued that even if the fact of a prior conviction need not be decided by a jury, the question of whether prior convictions are numerous or of increasing seriousness must be found by a jury. The court disagreed and, citing McGee and Thomas, stated that the defendant “reads the ‘prior conviction’ exception too narrowly.” (Black II, supra, at p. 819.) The court further explained: “As we recognized in McGee, numerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) The defendant’s criminal history, the court concluded, established an aggravating circumstance that satisfies the Sixth Amendment and rendered him eligible for the upper term. (Id. at p. 820.)
B. Application to this Case
This case involved a typical sentencing process under the determinate sentencing law. Since Cunningham found that the determinate sentencing law violated the constitutional right to have a jury determine any fact, except the fact of a prior conviction, used to aggravate a sentence, the issue is whether there was such a violation in this case and, if so, the proper remedy.
Preliminarily, the Attorney General contends that defendant forfeited his present claim of error by failing to object at sentencing. The Attorney General notes that Blakely had been decided on June 24, 2004, and defendant did not make any objection based on Blakely at his sentencing in 2006. The same argument was made and recently rejected in People v. Sandoval (2007) 41 Cal.4th 825, 837, footnote 4 (Sandoval). In that case, the sentencing of the defendant took place after both Blakely and Black I and before Cunningham. (Sandoval, supra, at p. 837, fn. 4.) The court stated: “The Attorney General contends counsel in many other cases understood, even after Black I and before the high court granted certiorari in Cunningham, that the constitutionality of California’s [determinate sentencing law] remained an unsettled question and, accordingly, those counsel raised this issue in the trial court. [¶] Nonetheless, we agree with the Court of Appeal’s conclusion that the claim was not forfeited. An objection in the trial court is not required if it would have been futile. [Citation.] As the Attorney General concedes, our decision in Black I was binding on the lower courts until it was overruled by the high court. [Citation.] Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request.” (Ibid.)
On this point, Sandoval is indistinguishable. The sentencing in this case, like that in Sandoval, took place after both Blakely and Black I, and before Cunningham. An objection on Blakely grounds would have been equally futile. We therefore conclude that a futile objection was not necessary to preserve the issue for appeal.
The primary issue in this case is the application of the recidivism exception described above. The court noted that defendant had committed a similar offense and was on probation for that offense at the time of the current offense. The court also stated that it is reasonable to believe that defendant will commit similar crimes in the future. The court thus focused on defendant’s recidivism in choosing the upper term and, under the authorities cited above, that factor was sufficient to support an upper term sentence without violating Cunningham.
To attack this conclusion, defendant attacks the recidivism exception itself. He cites Cunningham and Shepard v. United States (2005) 544 U.S. 13 [125 S.Ct. 1254, 161 L.Ed.2d 205] (Shepard).
Cunningham refers generally to aggravating circumstances and defendant interprets that to mean all factual circumstances listed in California Rules of Court, rule 4.421, i.e., both facts relating to the crime and facts relating to the defendant. It states: “Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt . . ., the [determinate sentencing law] violates Apprendi’s bright-line rule: Except 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.)
Defendant correctly points out that other portions of the Cunningham opinion do not differentiate between facts relating to the crime and facts relating to the defendant. Indeed, the majority specifically rejects Justice Kennedy’s argument that there should be a distinction: “JUSTICE KENNEDY urges a distinction between facts concerning the offense, where Apprendi would apply, and facts concerning the offender, where it would not. [Citation.] Apprendi itself, however, leaves no room for the bifurcated approach JUSTICE KENNEDY proposes. [Citation.]” (Cunningham, supra, 127 S.Ct. at p. 869, fn. 14.)
In Shepard, supra, 544 U.S. 13, the Supreme Court considered a predicate burglary offense which would increase the maximum term under the Armed Career Criminal Act (ACCA). The government argued that it should be able to introduce police reports and complaint applications to prove that the burglary was of a dwelling house. (Id. at pp. 21-23.) The court rejected the argument, holding that, in proving the predicate offenses under ACCA, the government “is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” (Id. at p. 26.)
More importantly for our purposes, the court refused to apply the Almendarez-Torres prior conviction exception: “Instead, the sentencing judge considering the ACCA enhancement would (on the Government’s view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute. The rule of reading statutes to avoid serious risks of unconstitutionality [citation], therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea, just as Taylor [v. United States (1990) 495 U.S. 575 [110 S.Ct. 2143, 109 L.Ed.2d 607]] constrained judicial findings about the generic implication of a jury’s verdict.” (Shepard, supra, 544 U.S. at pp. 25-26.)
In a concurring opinion, Justice Thomas said: “Almendarez-Torres, like Taylor[, supra, 495 U.S. 575], has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. [Citations.] The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres’[s] continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental ‘imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements.’ [Citation.]” (Shepard, supra, 544 U.S. at pp. 27-28 (conc. opn. of Thomas, J.).) Justice Thomas also expressed his view that Almendarez-Torres was incorrectly decided in a concurring opinion in Apprendi. (Apprendi, supra, 530 U.S. at pp. 520-521 (conc. opn. of Thomas, J.).)
Almendarez-Torres has not been overruled. Indeed, as our State Supreme Court made clear in Black II, it is not only valid but should be read expansively to include issues related to a prior conviction that can be determined by examining the records of the prior convictions. (Black II, supra, 41 Cal.4th at p. 819.) Moreover, the Black II court cited McGee and Thomas with approval, indicating the continuing validity of those decisions after Cunningham. McGee and Thomas make it clear that the fact that defendant was on probation or parole at the time of the current offense is a fact intrinsically related to a prior conviction, and may be found by the trial court. Once having found that fact, the trial court may use it to impose an upper term sentence without violating Cunningham. We therefore find that the trial court did not indulge in the kind of improper fact finding which Cunningham subsequently held was a violation of the Sixth Amendment right to a jury trial.
IV. DISPOSITION
The judgment is affirmed as to the conviction on count 1 and reversed as to the conviction on count 3.
We concur: Ramirez, P.J., Miller, J.