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People v. Mitchell

California Court of Appeals, Third District, Sacramento
Mar 25, 2008
No. C055098 (Cal. Ct. App. Mar. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RICKY MITCHELL, Defendant and Appellant. C055098 California Court of Appeal, Third District, Sacramento March 25, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 05F06978

DAVIS, J.

Defendant Ricky Mitchell entered a negotiated plea of no contest to possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted two prior prison term allegations (Pen. Code, § 667.5, subd. (b)) in exchange for a stipulated state prison sentence of five years; that is, the upper term of three years for the offense plus one year for each of the prior prison terms, execution suspended and a grant of Proposition 36 probation if eligible, and the dismissal of the remaining seven prior prison term allegations.

The court imposed the five-year sentence, suspended execution and granted probation accordingly subject to certain terms and conditions, including participation in and completion of Proposition 36 drug treatment.

A year and a half later, defendant violated probation based on new convictions. The court denied further probation. Defense counsel contended that defendant had not waived his right to a jury trial on aggravating factors when he entered his plea and asserted that imposition of the upper term violated his constitutional right. The court disagreed, finding that defendant agreed to accept the upper term sentence in exchange for dismissal of the remaining prior prison term allegations and referral to drug treatment, and imposed the previously suspended sentence of five years.

Defendant appeals. His request for a certificate of probable cause (Pen. Code, § 1237.5) was granted.

Discussion

Defendant contends that the trial court’s imposition of the upper term of three years for possession of cocaine base contravenes Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). He claims the trial court did not advise him or obtain his waiver of the right to a jury trial on factors used to aggravate his sentence; thus, his agreement to stipulate to the upper term was not knowing, voluntary and intelligent, rendering his sentence unauthorized. He argues that any objection at the time of his plea or when he was granted probation would have been futile. He claims the sentencing exception in People v. Sandoval (2007) 41 Cal.4th 825 is inapplicable because the trial court did not rely on his prior convictions but, if it did, it did so improperly. He contends that Sandoval was wrongly decided, raising this point to preserve it for federal review.

As the Attorney General responds, defendant’s contention has been forfeited because he did not timely appeal after the court originally granted probation and, in any event, the trial court relied upon defendant’s criminal history, which reflects numerous prior convictions.

On September 27, 2005, the court imposed sentence, suspended execution and granted probation. Defendant violated probation a year and a half later.

Defendant has forfeited his Cunningham challenge. He failed to appeal from the 2005 judgment imposing but suspending the upper-term sentence. His challenge to the upper term from an order revoking probation and imposing the previously suspended sentence is not cognizable now on appeal. (People v. Amons (2005) 125 Cal.App.4th 855, 869.)

In any event, his contention lacks merit.

“[I]mposition 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.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)

In imposing sentence for possession of cocaine base, the court stated that it chose the upper term of three years based on defendant’s “criminal history.” The probation report reflects 11 felony convictions, 11 misdemeanor convictions and numerous violations of parole. Defendant’s numerous prior convictions and parole violations are “based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Defendant’s criminal history, which reflects numerous prior convictions, rendered him eligible for the upper term sentence; thus, “his Sixth Amendment right to a jury trial was not violated by imposition of the upper term” for possession of cocaine base. (Id. at p. 820.)

Disposition

The judgment is affirmed.

We concur: SIMS, Acting P.J. RAYE, J.


Summaries of

People v. Mitchell

California Court of Appeals, Third District, Sacramento
Mar 25, 2008
No. C055098 (Cal. Ct. App. Mar. 25, 2008)
Case details for

People v. Mitchell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICKY MITCHELL, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 25, 2008

Citations

No. C055098 (Cal. Ct. App. Mar. 25, 2008)