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People v. Osby

Court of Appeal of California
Sep 5, 2008
No. C057282 (Cal. Ct. App. Sep. 5, 2008)

Opinion

C057282

9-5-2008

THE PEOPLE, Plaintiff and Respondent, v. TIMMY DEAN OSBY, Defendant and Appellant.

Not to be Published


Defendant appeals from the judgment of conviction after he entered a plea of no contest to one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); Ct. 4) and the trial court sentenced him to prison for the upper term of three years.

All further section references are to the Penal Code unless otherwise specified.

Defendant was also charged with possession for sale of cocaine, methamphetamine and marijuana (Health & Saf. Code, §§ 11351, 11378, 11359; Cts. 1, 2, 3) and sentence enhancement allegations that he had suffered a prior drug-related conviction (Health & Saf. Code, § 11370.2, subd. (a)) and was personally armed during the commission of count two. (Pen. Code, § 12022, subd. (c).) These three counts and two enhancement allegations were stricken after he entered his negotiated plea.

On appeal, he claims that imposition of an upper term sentence violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 (Cunningham) because the trial court ignored the circumstances in mitigation and violated his rights to due process, equal protection, and against ex post facto laws and because the trial court imposed sentence under section 1170, subdivision (b) as amended by Senate Bill No. 40 (SB 40).

We find no error and shall affirm the judgment and sentence.

FACTUAL BACKGROUND

The underlying facts, which we take from the probation officers report, are as follows: On October 26, 2007, officers from the Butte Interagency Narcotics Task Force executed a search warrant at defendants residence on Wildflower Terrace in Oroville and at a hog farm operated by defendant on V-7 Road, also in Oroville. A search of defendants residence resulted in the seizure of a loaded Glock handgun, $23,608 in cash, vehicles and a television. The handgun was in defendants bedroom and within reach of his three minor children. A search of his garbage revealed drug paraphernalia with cocaine residue.

During a search of a vehicle not registered to defendant but located on defendants farm, officers seized methamphetamine, cocaine, marijuana, drug paraphernalia, two scales, packaging materials, and three firearms.

DISCUSSION

Arguing that People v. Black (2007) 41 Cal.4th 799 (Black II) was wrongly decided, defendant claims the trial court improperly imposed an upper term sentence in violation of Cunningham, supra, 549 U.S. 270 because it failed to consider any of the circumstances in mitigation. He recognizes that this court is bound by Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but raises this claim to preserve it for federal review. He further argues that by imposing sentence under section 1170, subdivision (b) as amended by SB 40, the trial court violated his rights to due process, equal protection, and against ex post facto laws.

Respondent contends this claim has no merit because the sentence was constitutional under Cunningham and therefore, assuming that application of SB 40 to defendant was an improper retroactive application, any error was harmless. We agree with respondent.

A. Procedural Background

Before imposing sentence on August 23, 2007, the trial court stated that it had read and considered all of the facts of the case, the probation report as modified, the arguments of counsel, and defendants record and found "compelling the four prior felony convictions," which the court relied on to impose the upper term of three years.

In his report, the probation officer recommended imposition of a middle two-year term of imprisonment because in his view, the circumstances in aggravation were balanced by the circumstances in mitigation. The report lists four circumstances in aggravation: (1) defendant left a loaded handgun within reach of three young children, indicating he is a serious threat to the children and the community, (2) defendants criminal record is numerous and increasing in seriousness, (3) defendant has served two prior prison terms, and (4) defendants performance on probation was unsatisfactory. The circumstances in mitigation included the facts that (1) defendant was not on probation when the offense was committed and (2) commission of the offense did not result in any injury or monetary loss to anyone.

B. Analysis

In Cunningham, supra, 549 U.S. 270 , the United States Supreme Court invalidated Californias determinate sentencing law (DSL), reasoning that "[c]ontrary to the Black courts holding, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Id. at p. __ .)

People v. Black (2005) 35 Cal.4th 1238 (Black I).

Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455](Apprendi) and United States v. Booker (2005) 543 U.S. 220 .

However, on remand, the California Supreme Court in Black II, supra, 41 Cal.4th 799, held that "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirement of Apprendi 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." (Id. at p. 812.)

Meanwhile, in the wake of Cunningham and while Black II was pending (People v. Sandoval (2007) 41 Cal.4th 825, 845), the California Legislature passed urgency legislation, effective March 30, 2007, which amended section 1170, subdivision (b). (See Stats. 2007, ch. 3, enacting SB 40 (2007-2008 Reg. Sess.)

The amended scheme provides that "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officers report, other reports . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim . . . and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . ." (§ 1170, subd. (b).)

In sum, the amendments make three basic changes to the procedure for imposing a term of imprisonment: (1) the middle term is no longer the required or presumptive term in the absence of aggravating or mitigating circumstances (People v. Sandoval, supra, 41 Cal.4th at p. 855); (2) the statutory triad of terms sets a statutory range of imprisonment and the trial court has broad discretion to impose the lower, middle, or upper term based upon a specified standard, i.e., that which "best serves the interests of justice;" and (3) the trial court need only set forth its reasons (but not facts) for imposing the lower, middle, or upper term.

The Judicial Council amended the sentencing rules in conformance with the statutory changes. Rule 4.420(a) provides that "the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted . . . ." The trial court is required to specify reasons for its sentencing decision, but is no longer required to cite "`facts that support its decision or to weigh aggravating and mitigating circumstances." (People v. Sandoval, supra, 41 Cal.4th at p. 847; compare former rule 4.420 with rule 4.420 as amended May 23, 2007.)

According to the trial courts statement of reasons in this case, the court imposed the upper term of imprisonment based solely on defendants four prior felony convictions. (Cal. Rules of Court, rule 4.420(b) (hereafter rule).) As sentence was imposed almost five months after SB 40 became effective and the language used by the trial court tracks and reflects those changes, we shall assume the court was aware of and applied the amended version of section 1170, subdivision (b). Nevertheless, we need not decide whether that was a prohibited retroactive application of the statute because imposition of the upper term was proper under Cunningham.

In People v. Sandoval, supra, 41 Cal.4th 825, the Supreme Court stated that it was "arguable" whether the amendments to the DSL are procedural in nature and therefore applicable to any sentencing proceedings conducted after the effective date of the amendments. (Id. at p. 845.) However, instead of deciding that question, the Court invoked its own discretionary power to modify procedural laws to conform to constitutional principles and did so consistent with the terms enacted by SB 40. (Id. at pp. 845-846.) In so doing, the court found that application of the procedural terms of SB 40 to resentencing procedures for crimes committed before its passage violates no principle of ex post facto protection because it was applying judicial procedures it deemed necessary to comport with constitutional principles. (Id. at p. 855.) It further found that application of those modified procedures to the defendants crimes does not violate the due process clause. (Id. at pp. 856-857.)

It is well established that a prior conviction is an aggravating factor that is exempt from Apprendi (Black II, supra, 41 Cal.4th at pp. 816, 818; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-244 [140 L.Ed.2d 350, 365-369]) and under the former statutory scheme (former § 1170, subd. (b); Stats. 2004, ch. 747, § 1), an upper term sentence could be imposed based upon a single aggravating factor. (Black II, supra, 41 Cal.4th at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Since the trial court relied on defendants prior convictions to impose the upper term, the sentence did not implicate the principles of Apprendi. (Black II, supra, 41 Cal.4th at pp. 813-814, 818.)

Nevertheless, defendant argues that the presence of one aggravating factor did not necessarily make him eligible for an upper term under the DSL because California law has long held that to impose the upper term, the factors in aggravation must outweigh those in mitigation. (People v. Hall (1994) 8 Cal.4th 950, 957, 958; see former rule 4.420(b), as amended and renumbered Jan. 1, 1991.) While this may be an accurate statement, it does not change the result because Apprendi only proscribes judicial fact-finding that results in increased punishment beyond the statutory maximum. (Apprendi, supra, 530 U.S. at p. 489, .) The trial court retains discretionary authority to determine what facts are relevant to an increased sentence (Booker v. United States, supra, 543 U.S. at p. 233 ) and that authority necessarily includes the discretion to weigh the circumstances in aggravation and mitigation. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; People v. Whitten (1994) 22 Cal.App.4th 1761, 1766.)

The weighing process "involves a flexible quantitative and qualitative analysis, not a rigid numerical approach." (People v. Thornton (1985) 167 Cal.App.3d 72, 77.) Since a single aggravating factor was sufficient to impose an aggravated sentence if the aggravating factor or factors outweighed the cumulative effect of all mitigating factors in light of the general sentencing objectives stated in rule 4.410 (People v. Nevill (1985) 167 Cal.App.3d 198, 202; People v. Cruz (1995) 38 Cal.App.4th 427, 433), the trial court had authority to weigh those circumstances and determine that defendants significant criminal history outweighed any mitigating factors. We therefore conclude that imposition of the upper term does not run afoul of Apprendi, Blakely, and Cunningham. As defendant does not raise the claim that imposition of the upper term was an abuse of discretion, we find no prejudicial error.

DISPOSITION

The judgment is affirmed.

We concur:

RAYE, J.

BUTZ, J.


Summaries of

People v. Osby

Court of Appeal of California
Sep 5, 2008
No. C057282 (Cal. Ct. App. Sep. 5, 2008)
Case details for

People v. Osby

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TIMMY DEAN OSBY, Defendant and…

Court:Court of Appeal of California

Date published: Sep 5, 2008

Citations

No. C057282 (Cal. Ct. App. Sep. 5, 2008)