Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA049273, Shari Silver, Judge.
Athena Shudde, 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, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Edwardo Emanuel Powell was convicted by a jury of voluntary manslaughter as a lesser included offense of murder, with a special finding that Powell had personally used a firearm, and possession of a firearm by a felon. He was ultimately sentenced to an aggregate state prison term of 21 years: the upper term of 11 years for voluntary manslaughter plus the upper term of 10 years for the related gun-use enhancement and a concurrent term of two years for the felon-in-possession charge. On appeal Powell argues only that the trial court’s imposition of the upper term sentences based on a factual determination 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
Powell and two other men were charged in an information with the murder of Quincy Guidry, conspiracy to commit robbery and attempted second degree robbery of Guidry. Powell was also charged with possession of a firearm by a felon, and it was specially alleged that Powell had personally used a firearm in connection with the murder and attempted robbery.
The evidence at trial established that Powell and Marcus Jones committed a series of armed robberies of automobile supply stores in the San Fernando Valley from March 2004 through June 2004. Powell displayed a gun or simulated a handgun in each of the crimes. Alberto Tabares acted as their driver during several of the robberies.
Jones was arrested on July 27, 2004 while a passenger in a car driven by Guidry. The following day Guidry, who had been questioned by the police at the time of Jones’s arrest, was found dead next to his car in the carport of the apartment complex where he lived. Guidry had suffered multiple gunshot wounds.
Tabares, who had also been charged with the murder and attempted robbery of Guidry, testified at trial (pursuant to a plea agreement) that he had planned with several other men, including Powell, to rob Guidry in connection with a drug transaction. Guidry was killed during the incident. Powell was also shot, and it was stipulated that blood at the shooting scene was Powell’s. Testifying in his own defense, Powell acknowledged shooting Guidry, but asserted Guidry had shot first and he had returned fire only in self-defense.
Apparently accepting an imperfect self-defense theory, the jury convicted Powell of voluntary manslaughter as a lesser included offense of murder. The jury also found Powell guilty of being a felon in possession of a firearm, found him not guilty of conspiracy to commit robbery and attempted robbery and found true the firearm-use allegations related to the voluntary manslaughter charge. Powell was originally sentenced on December 1, 2006 to an aggregate state prison term of 21 years eight months: the upper term of 11 years for voluntary manslaughter plus the upper term of eight years for the firearm-use enhancement and a consecutive term of eight months (one-third the middle term of two years) for the felon-in-possession charge.
Explaining its sentencing decision, the trial court found no mitigating factors and identified a number of circumstances in aggravation: “The court under rule 4.421, subsection (a), subsection (1) agrees with the prosecution that the defendant’s crime of shooting somebody in a parking structure in an apartment building, that there was a real threat of injury or death to other persons who could be in the parking structure at the time of the crime. Rule 4.421, subsection (a), subsection (2). The court is not using the use of the firearm as part of -- which is part of the sentence that will be imposed, but the testimony did show that the defendant had extensive times wherein he possessed firearms for purposes of illegal and violent behavior. Under rule 4.421, subsection (a), subsection (8), that the defendant used a tremendous amount of planning in this case; that he planned to be armed; he planned how he would attack the victim; he planned the escape area; there was a getaway car with no license plate in front. California Rules of Court 4.421, subsection (b), subsection (1), the extremely violent conduct of the defendant indicates an extreme serious danger to our society. The defendant himself admitted, I believe, at least four Auto Zone robberies that he committed, and some of the witnesses testified that the defendant at that time used a gun or threatened to have a gun. . . . Rule 4.421, subsection (b), subsection (2), the prior sustained petitions and adult convictions are numerous and of increasing seriousness. The probation report documents the defendant’s criminal history. Possessing a weapon on a school ground, which is absolutely dangerous; theft; drug convictions; driving -- stealing a car and driving it petition; drug conviction; another 12101, subsection (a), subsection (1) felon petition sustained. Then he was on probation on the 487, subsection (a), and then another misdemeanor. Rule 4.421, subsection (b), subsection (4), defendant was on felony probation when he shot and killed Mr. Guidry. Rule 4.421, subsection (b), subsection (5), his performance on probation, both juvenile and adult was extremely poor.”
Mindful of Blakely, supra, 542 U.S. 296 and the evolving and unsettled law regarding the court’s imposition of upper term sentences under California’s determinate sentencing law, the court also found, “If any of these aggravating factors that the court has enumerated are not legally []permissible, the court finds that any one of the aggravating factors would in and of itself be sufficient to sustain a finding of the upper term. . . . The court finds that each of the individual factors in aggravation outweighs any imaginable mitigating factors . . . .”
Powell filed a timely notice of appeal on January 10, 2007. On January 23, 2007 Powell moved for resentencing in light of the United States Supreme Court’s January 22, 2007 decision in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. As a result, Powell was resentenced in March 2, 2007. The court imposed the same 21-year sentence for the manslaughter and related gun-use enhancement but ordered the sentence on the felon-in-possession count (the middle term of two years) to run concurrently with the principal term. Explaining its decision on resentencing, the court “incorporate[d] its previous discussion on the record at the time of sentencing,” and stated, “some of those factors [in aggravation] relied upon by the court dealt with specifically the defendant’s prior record, his recidivism, and what he admitted at the time of his testimony as to all of the robberies at the auto stores. The court specifically found that any one of the aggravating factors was sufficient to justify the upper term. So for those reasons, the court believes that the court’s sentence was not in violation of the future Cunningham decision.” In addition, because the court had decided to impose a concurrent term, rather than a consecutive term, on the felon-in-possession charge, it noted this was a further circumstance justifying imposition of the upper term. (Cal. Rules of Court, rule 4.421(a)(7).)
Powell filed a new notice of appeal, and the two appeals were consolidated by this court.
DISCUSSION
In Cunningham, supra, 549U.S. ___ [127 S.Ct. 856] the United States Supreme Court reaffirmed Blakely, supra, 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2438, 147 L.Ed.2d 435], overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held California’s determinate sentencing law violates a defendant’s right to a jury trial guaranteed by 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) that expose a defendant to an upper term sentence by a preponderance of the evidence. “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, at pp. ___ [127 S.Ct. at pp. 863-864].)
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, so that “any 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.” (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 facts 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 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.” (Black I, 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.)
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, 549 U.S. ___ [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 California Rules of Court, 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, Powell’s probation and sentencing report, relied upon by the trial court, reflected prior juvenile adjudications and adult convictions that are sufficiently numerous to satisfy California Rules of Court, rule 4.421(b)(2) and made him eligible for the upper term. (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, in resentencing Powell the trial court imposed a concurrent term for the felon-in-possession count, rather than a consecutive term, and properly held this was an additional circumstance that supported imposition of an upper term sentence. (Cal. Rules of Court, rule 4.421(a)(7); see Black II, at p. 821 [trial court’s decision to impose consecutive terms under section 669 does not implicate Sixth Amendment].) These two aggravating factors, properly identified by the trial court, adequately support the upper term sentences imposed in this case. Powell’s federal constitutional right to a jury trial was not violated by the trial court’s sentencing decision.
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 California Rules of Court, 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) -- two additional circumstances identified by the trial court in this case.
Powell acknowledges in his reply brief that our affirmance of his sentence is compelled by Black II, supra, 41 Cal.4th 799, but argues Black II is inconsistent with Cunningham, supra, 549 U.S. __ [127 S.Ct. 856] to preserve his federal appellate rights.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.