Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA269489, Ann I. Jones, Judge.
Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Shouting racial epithets, Jimmie Moody shoved an elderly man into the street, causing him to fall and to suffer severe brain damage. Moody pleaded guilty to aggravated assault and admitted he had inflicted great bodily injury on a victim over 70 years of age and had committed a hate crime. He was sentenced to 12 years in state prison. On appeal Moody contends the trial court abused its discretion by denying him probation and sentencing him to state prison. He also contends the trial court’s imposition of the upper terms for the crime of aggravated assault and the hate crime enhancement based on factual determinations made by the trial judge, not the jury, violated his federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Immediately following his arraignment and against defense counsel’s advice, Jimmie Moody waived his constitutional rights and entered an open plea of guilty to the crime of aggravated assault and admitted the special allegations relating to the two sentencing enhancements. Before entering his plea Moody repeatedly acknowledged his understanding that he could either receive probation or be sentenced to state prison for a period up to 12 years, the maximum aggregated sentence. The trial court found the plea was freely and voluntarily entered, and there was a factual basis for the plea. Defense counsel did not join in the plea. As part of the open plea Moody was referred to the Department of Corrections for a 90-day diagnostic study pursuant to Penal Code section 1203.03.
The crime of aggravated assault is punishable as a felony by imprisonment for a two, three or four-year term. (Pen. Code, § 245, subd. (a).) The enhancement for inflicting great bodily injury on an elderly victim carries a mandatory consecutive five-year term. (Pen. Code, § 12022.7, subd. (c).) The enhancement for committing a hate crime is an additional one, two or three-year term in state prison. (Pen. Code, § 422.75, subd. (a).) The information also charged Moody in count 2 with misdemeanor battery against the same victim with a hate crime enhancement allegation. Moody did not enter a plea to count 2, and it was dismissed at the conclusion of the sentencing hearing.
The diagnostic study recommended Moody as a suitable candidate for probation. Nonetheless, at the sentencing hearing the trial court announced its tentative decision was to deny probation. The court indicated it had read and considered the parties’ sentencing memoranda in addition to the diagnostic study and also had before it a probation report reflecting Moody’s criminal record. After brief argument by counsel, the court denied probation, concluding Moody would not comply with the terms of probation. The court noted Moody had long suffered from mental illness (schizophrenia), but refused to take his prescribed antipsychotic medication, turning instead to alcohol and “crack cocaine” that exacerbated his already aggressive and unpredictable behavior. The court stated the unsuspecting victim, an elderly man waiting for a bus, was particularly vulnerable and was critically injured in the assault. In the court’s opinion, because of Moody’s steadfast refusal to treat his mental illness, he was an “incalculable danger” to anyone he may encounter.
In selecting the terms of imprisonment the trial court observed Moody’s criminal conduct in this case was not an isolated event, although it was the only incident involving violence, and noted Moody’s “extensive” criminal record, beginning in 1989 and encompassing arrests and convictions primarily in California but also in six other states. The court also commented the degree of violence was “extreme [and] unjustified,” and the victim had sustained permanent, severe brain damage. Moody was on summary probation in Los Angeles County when he committed the aggravated assault. The court concluded that these factors, particularly Moody’s criminal history and probationary status at the time of the instant offense, justified imposition of the aggregated maximum 12-year sentence.
The probation officer’s report showed Moody, a 38-year-old transient, had one felony conviction and nine misdemeanor convictions since 1994. His felony conviction was for possession of a controlled substance in 1997. His misdemeanor convictions were for petty theft in 1994 (Pennsylvania) and for trespass in 1997, 1999 (Oregon) and 2003. He had five convictions for disorderly conduct, four in 2001, and one in 2004 for which he was on summary probation on August 6, 2004 when he committed the aggravated assault.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Denying Probation
Our review of a trial court’s decision to grant or deny probation is deferential. “The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; Cal. Rules of Court, rule 4.414.) To establish an abuse of discretion, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 834, 835; see also People v. Carmony (2004) 33 Cal.4th 367, 377 [“[A] ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it”].) “Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.” (Carbajal, at p. 1120.) “[A] grant of probation is not a matter of right but an act of clemency.” (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.)
All rule references are to the California Rules of Court.
The trial court’s decision to deny Moody probation was well within its broad discretion. The court properly considered Moody’s background, the arguments of counsel and the diagnostic study. The court gave a lengthy and reasoned explanation for denying probation, resting its decision on Moody’s history of mental illness, his demonstrated failure to participate in his own treatment and his chronic alcohol and substance abuse (rule 4.414(b)(4)), the victim’s vulnerability and severe injuries (rule 4.414(a)(3) & (4)), and the need to protect the public’s safety from Moody’s violent and unprovoked behavior (rule 4.414(a)(7) & (b)(8)). Contrary to Moody’s suggestion, the court was not required to follow the recommendations of the submitted diagnostic study. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Tang (1997) 54 Cal.App.4th 669, 683 [“The [Penal Code] section 1203.03 recommendation . . . is simply one factor among others, both factual and legal, to be considered by the judge in pronouncing sentence . . . . The sentencing court cannot be required to follow the section 1203.03 recommendation and must exercise its discretion in light of all appropriate factors . . . in order to discharge properly the sentencing function”].) In sum, the trial court did not exercise its discretion in an arbitrary or capricious manner.
2. Imposition of an Upper Term Sentence Did Not Violate Moody’s Right to a Jury Trial
Although Moody was specifically advised and expressly acknowledged before entering his guilty plea that he faced a possible 12-year aggregate state prison sentence, he now contends the trial court’s selection of the four-year upper term for aggravated assault and the three-year upper term for the hate crime enhancement, based on facts neither admitted by him nor found true beyond a reasonable doubt by a jury, violated his Sixth and Fourteenth Amendment rights to a jury trial under Blakely, supra, 542 U.S. 296 and Cunningham, supra, 127 S.Ct. 856.
As a threshold matter, we reject the People’s contention Moody forfeited his Blakely/Cunningham argument by not objecting on constitutional grounds to the trial court’s imposition of the upper term sentence. Moody was sentenced on July 28, 2005, a month after the California Supreme Court had upheld the constitutionality of California's determinate sentencing law in People v. Black (2005) 35 Cal.4th 1238 (Black I), and nearly 18 months before that decision was overturned by the United States Supreme Court in Cunningham. In People v. Sandoval (2007) 41 Cal.4th 825, the Supreme Court held, because any Blakely objection would have been futile during the post-Black I, pre-Cunningham interval, a defendant sentenced in that period who did not object to imposition of the upper term sentence does not forfeit his or her constitutional claim. (Sandoval, at p. 837, fn. 4 [“An objection in the trial court is not required if it would have been futile. . . . Had the 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”].)
In Cunningham, supra, 127 S.Ct. 856 the United States Supreme Court reaffirmed Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and Blakely, supra, 542 U.S. 296, overruled the California Supreme Court’s decision in People v. Black (2005) Cal.4th 1238 (Black I), and held California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) by a preponderance of the evidence that subject a defendant to the possibility of an upper term sentence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, 127 S.Ct. at pp. 863-864.)
In Black I, supra, 35 Cal.4th 1238 the California Supreme Court had held, notwithstanding Blakely, “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) The Court explained, “The jury’s verdict of guilty on an offense authorizes the judge to sentence a defendant to any of the three terms specified by statute as the potential punishments for that offense, as long as the judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules.” (Id. at pp. 1257-1258.)
Following its decision in Cunningham, the United States Supreme Court vacated the judgment in Black I, supra, 35 Cal.4th 1238, and remanded the case to the California Supreme Court for further consideration in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II), the Court held the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities “renders a defendant eligible for the upper term sentence” under the determinate sentencing law. (Id. at p. 812.) “The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating factors are found by the trial court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
In addition, relying on United States Supreme Court decisions holding the trial court may increase the penalty for a crime based upon the defendant’s prior convictions without submitting that question to a jury (see Cunningham, supra, 127 S.Ct. at p. 868; Blakely, supra, 542 U.S. at p. 301; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [118 S.Ct. 1219, 140 L.Ed.2d 350] [“recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence”]), the Black II Court held that aggravating factors relating to a defendant’s prior convictions are beyond the reach of Cunningham. “As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], 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. . . . [¶] The 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.’” (Black II, supra, 41 Cal.4th at pp. 819-820.) Accordingly, the defendant’s criminal history established an aggravating circumstance under rule 4.421(b)(2) -- “defendant’s prior convictions . . . are numerous or of increasing seriousness” -- “that independently satisf[ies] Sixth Amendment requirements and render[s] him eligible for the upper term.” (Black II, at p. 820.)
As in Black II, Moody’s probation and sentencing report, relied upon by the trial court, reflected prior adult convictions that are sufficiently numerous to satisfy rule 4.421(b)(2) and made him eligible for the upper term on the aggravated assault count. (See Black II, supra, 41 Cal.4th at p. 818 [three misdemeanor and two felonies are numerous and of increasing seriousness]; People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].) In addition, Moody was on probation when the crime was committed (rule 4.421(b)(4)), an aggravating factor plainly related to recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black II, at pp. 819-820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Based on this additional recidivism-related finding, the court also properly imposed an upper term for the hate crime enhancement. “[A]ny 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 II, at p. 812.)
Although the Supreme Court in Black II, supra, 41 Cal.4th at pages 819 to 820 held the Almendarez-Torres recidivism exception to the Sixth Amendment right to a jury trial was not to be narrowly construed, the Court intends to address in People v. Towne, S125677 (review granted July 14, 2004; supplemental briefing ordered Feb. 7, 2007) whether the exception applies to the circumstances described in rule 4.421(b)(4) (defendant was on probation or parole when crime was committed) and (b)(5) (defendant’s prior performance on probation or parole was unsatisfactory). Even if this second aggravating factor should have been submitted to the jury under Cunningham, however, the “denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman) . . . .” (People v. Sandoval, supra, 41 Cal.4th at p. 838.) Based on the record in this case, we are confident a jury would necessarily have found true beyond a reasonable doubt that Moody was on probation when he committed the aggravated assault.
3. The Trial Court Did Not Abuse Its Discretion in Imposing the Upper Terms
In addition to his constitutional challenge to his sentence, Moody argues the trial court erred in imposing upper term sentences, contending the court failed to consider as mitigating factors that his prior convictions were for nonviolent offenses and all but one were misdemeanors and that he is a diagnosed schizophrenic who is amenable to treatment and who committed the aggravated assault in an unmedicated and, therefore, delusional state.
We review the trial court’s decision to impose an upper term for abuse of discretion. (People v. Scott (1994) 9 Cal.4th 331, 349.) Discretion is abused if the sentencing decision is arbitrary or irrational; otherwise “the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
No abuse of discretion occurred in this case. The California Rules of Court do not limit the trial court’s consideration of prior convictions to felonies, and criminal records consisting solely of misdemeanor convictions have been held to justify imposition of the upper term. (See, e.g., People v. Searle, supra, 213 Cal.App.3d at p. 1098, see also Black II, supra, 41 Cal.4th at p. 818 [considering both felonies and misdemeanors].) It was by no means unreasonable for the trial court to conclude Moody’s 10 convictions in 10 years were numerous. Although Moody claims his mental illness and criminal record of nonviolent offenses as mitigating factors, those facts do not change the violent nature of his aggravated assault and the seriousness of the injuries he inflicted. (See rule 4.421(a)(1).) The court reasonably concluded in light of Moody’s history of alcohol and cocaine abuse and his persistent refusal to take his medications, the mitigating factors were far outweighed by the threat Moody posed to public safety in an unmedicated state. (Rule 4.421(b)(1).)
The task of weighing aggravating and mitigating factors is singularly one for the trial court. (People v. Calderon (1993) 20 Cal.App.4th 82, 87.) A sentencing decision “‘will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.”’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
DISPOSITION
The judgment is affirmed.
We concur:
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.