Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. 197813
Lambden, J.
Defendant Zeiad Salman appeals from the trial court’s sentencing, arguing that the court abused its discretion by basing his upper term sentence for rape of an unconscious person on insufficient evidence of a prior conviction. Defendant also challenges the legality of People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We affirm the trial court’s sentencing determination.
BACKGROUND
Defendant was found guilty by the jury of raping an unconscious person and sentenced to the upper term of eight years in state prison. In People v. Salman (Dec. 9, 2007, A114970 [nonpub. Opn.]) we affirmed the judgment, except that we vacated his upper term sentence and remanded the matter for further proceedings pursuant to Sandoval, supra, 41 Cal.4th 825.
The August 2006 probation report reviewed by the trial court before it resentenced defendant states that, as part of defendant’s prior record, he was convicted for petty theft in violation of Penal Code section 490.1 and sentenced to pay a fine in 1998, and lists his violation as “490.1 PC/M,” suggesting that defendant had committed a misdemeanor violation by the “M.” The report also states that defendant had been convicted by a Nevada jury in 1998 for attaining money under false pretenses and, after citing the relevant Nevada statute, includes an “F,” suggesting that this had been a felony conviction. However, the report states elsewhere that defendant “does not appear to have been convicted of any felony charges until the present offense.” The report states with regard to the Nevada conviction that “[a]ccording to defendant, he paid a fine.”
At the July 25, 2008 hearing, defense counsel contended that this second conviction was a misdemeanor, or at least had to be construed that way in light of the record, while the prosecution contended it was a felony based on the “F.” The court stated it was imposing the upper term, and that “I want the record to reflect I am basing my reasons for imposing the eight years state prison due to the defendant’s prior conviction in 1998, his prior record, and counsel did argue that, you know, prior opportunity to rehabilitate and fail, there is evidence. There is a prior opportunity where he did plead to a false imprisonment charge and that he had an opportunity to rehabilitate, and he failed because here we have him convicted of the rape case. [¶] So I am imposing the eight years.”
When defense counsel immediately pointed out the court’s erroneous reference to “false imprisonment,” the court indicated it had meant to refer to “false pretense,” thereby indicating that it was referring to defendant’s Nevada’s conviction. After further discussion, the court indicated that it could and had considered “the case,” including the evidence presented at trial, but added, “But the reason I am stating for the imposition is the record, prior conviction.” It indicated that it was also relying on the probation report without clarification, and continued the matter for actual sentencing. The minutes of the hearing stated that the court imposed an eight-year sentence “based on the defendant’s prior convictions, his prior record and the probation report.”
At the subsequent hearing, the court imposed the upper term sentence, and in doing so stated:
“I have heard arguments by the People, arguments by the defense, and I have thoroughly reviewed the presentence report that was prepared on August 18, 2006, where the defendant was convicted of a 261(a)(4) of the California Penal Code, as a felony, which the verdict was on May 4th, 2006.
“And I am considering the presentence report in its entirety, as well as the prior conviction in 1998. I am not making a finding if it’s a felony or a misdemeanor, just the fact that he was convicted of obtaining false—obtaining money under false pretenses, as well as the evidence that was presented at trial, which I am allowed to do under People v. Black.
“Therefore, probation is denied. The court is going to impose the upper term, as I indicated, and based on the reasons I have just set forth, which is eight years state prison.”
Defendant filed a timely notice of appeal. We granted his request for judicial notice of the record in People v. Salman, supra, A114970, by order filed on January 27, 2009.
DISCUSSION
I. Abuse of Discretion
Defendant first argues that the trial court abused its discretion in sentencing defendant to the upper term because “it improperly relied upon [defendant’s] prior conviction and/or ‘record’ to once again impose the upper term.” We do not agree.
In Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the United States Supreme Court concluded that California’s Determinate Sentencing Law (DSL) “violates a defendant’s right to jury trial because ‘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, supra, 549 U.S. at p. [281]....) In its seminal decision in Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490, the high court held that ‘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.’ In Blakely [v. Washington (2004) 542 U.S. 296 (Blakely)], the court clarified that the prescribed ‘ “statutory maximum” ’ for purposes of the right to a jury trial is not necessarily the maximum penalty stated in statute for the crime; rather, it is ‘the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ (Blakely, supra, 542 U.S. at p. 303.)” (People v. Black (2007) 41 Cal.4th 799, 809.) Cunningham held that the statutory maximum under the DSL is the middle term, and that the DSL violates the Sixth Amendment because it “ ‘allocates to judges sole authority to find facts permitting the imposition of an upper term sentence.’ ” (People v. Black, supra, 41 Cal.4th at pp. 809-810.)
People v. Black, supra, 41 Cal.4th 799, further held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. ‘Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.’ (Harris v. United States (2002) 536 U.S. 545, 558....) [¶] The facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ (Blakely, supra, 542 U.S. at p. 309.) Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728....) Therefore, 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.’ ” (People v. Black, supra, 41 Cal.4th at p. 813.) “[T]he right to a jury trial does not apply to the fact of a prior conviction” (id. at p. 818) or to the “determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness.’ ” (Id. at p. 819, quoting Cal. Rules of Court, rule 4.421(b)(2).)
In Sandoval, supra, 41 Cal.4th 825, our Supreme Court held that trial courts now have the discretion to select among the lower, middle, and upper terms specified in Penal Code section 1170 without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Sandoval, supra, 41 Cal.4th at pp. 846-847.) Although broad discretion is afforded to trial courts under this sentencing scheme, “[t]he trial court’s sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.] As under the former scheme, a trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Sandoval, supra, 41 Cal.4th at p. 847.)
Defendant argues that the evidence of his “alleged Nevada conviction” was insufficient for the court to impose the sentence it did. He argues that the probation report “discloses no facts as to the offense actually committed” and, therefore, the court should have presumed it involved a misdemeanor, citing People v. Miles (2008) 43 Cal.4th 1074, 1083. Defendant points out that in People v. Salman, supra, A114970, the People referred only to defendant’s “misdemeanor convictions.”
Defendant further argues that the probation report’s “unsubstantiated and truncated reference to the Nevada offense” “was so weak as to fall below the preponderance of evidence standard. The probation report not only fails to state whether any sentence was imposed or probation granted, but also demonstrates the probation officer’s reliance on [defendant’s] representation that he merely paid a fine... an outcome which would not have resulted from any misconduct that was deemed in the least bit serious.” Defendant insists that, although a trier of fact may draw reasonable inferences from the record presented, “that presupposes reliance on ‘official government documents,’ ” including a properly certified record of conviction. Thus, in this case “no reasonable inference could have been drawn from the record because it contained no official government documents, prepared contemporaneously as part of the judgment record. In short, nothing in the record allowed the court to draw a reasonable reference that [defendant] had been convicted of a felony, or in fact, of any offense at all. Accordingly, the court could not properly rely on the Nevada offense as a prior conviction justifying imposition of the upper term.”
The People argue that defendant has waived this “insufficient evidence of a prior conviction” claim by failing to first raise it before the trial court. However, the record indicates that defendant did raise the issue in his July 23, 2008 sentencing memorandum to the court, in which he argued that “the existence of this prior is so weak as to fall below the de minimus standard of preponderance of the evidence.” Therefore, we reject the People’s waiver argument.
Defendant’s arguments are unpersuasive for three reasons. First, defendant’s argument that the trial court was required to consider any conviction to be a misdemeanor also is of little consequence. The court expressly stated that it was “not making a finding if it’s a felony or a misdemeanor, just the fact that he was convicted[.]” Thus, the court indicated that it was relying on the conviction, even if it was a misdemeanor. Defendant does not explain why this was inappropriate.
Second, contrary to defendant’s contention, the trial court could rely on the probation report’s summary of defendant’s Nevada conviction. As the People point out, Penal Code section 1203, subdivision (b)(1), instructs that the probation officer is to report to the court about, among other things, “the prior history and record of the person, which may be considered either in aggravation or mitigation of punishment.” Defendant concedes as much in his reply brief, where he argues that he did not contend generally that a probation officer’s report could not be considered for purposes of establishing a defendant’s criminal history.
Third, defendant’s argument that the information contained in the probation report considered by the trial court did not establish the fact of his prior conviction also is unpersuasive. Regardless of the lack of details contained in the report, and the confusion in the report regarding whether he was convicted of a felony or a misdemeanor, the report expressly states without qualification that he was convicted by a jury of attaining money under false pretenses. Thus, there was substantial evidence of this prior conviction before the court.
Defendant also argues that the court was not entitled to rely on any record of dismissed or discharged arrests in sentencing him. However, we see no evidence that the trial court did so. The court’s reference to defendant’s record made sense in light of the probation report’s reference to another prior conviction, for petty theft. The minutes of the hearing indicate that the court relied on his prior convictions in sentencing him.
In short, defendant ignores the plain evidence of his Nevada conviction, and does not establish why the court could not impose the sentence it did for the reasons it stated. “It is appellant’s burden to demonstrate affirmatively an abuse of discretion.” (People v. Vanella (1968) 265 Cal.App.2d 463, 469 [regarding the trial court’s revocation of probation].) Defendant has failed to meet his burden. He has not established that the trial court abused its discretion by imposing the upper term sentence.
In light of our ruling, we do not address defendant’s argument that the trial court’s purported error was prejudicial, and requires that we amend his sentence to the middle term.
II. Constitutional Violations
Defendant argues in the alternative that defendant’s rights under the Fifth, Sixth, and Fourteenth Amendments, and under the ex post facto clause, of the federal Constitution, as well as his equal protection rights under the state Constitution, were violated when the trial court imposed the upper term based on facts not admitted by defendant or found to be true by a jury beyond a reasonable doubt. Essentially, defendant argues that Sandoval, supra, 41 Cal.4th 825, wrongly allowed sentencing for defendants such as himself, whose original sentencing occurred prior to Cunningham, supra, 549 U.S. 270, to proceed consistent with the recent amendments to Penal Code section 1170, which changed the DSL, and that such sentencing did not violate defendant rights of due process or pursuant to the ex post facto clause. (Sandoval, supra, 41 Cal.4th at pp. 845-846, 853-857.) Defendant argues that he should have been sentenced under Penal Code section 1170 and the California Rules of Court as they existed at the time he allegedly committed the offense. Defendant acknowledges, however, that this court must follow Sandoval because we are bound by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, but states that he “raises this issue now to preserve it for further federal review.” Accordingly, we reject defendant’s claim of constitutional violations.
DISPOSITION
The trial court’s sentencing determination is affirmed.
We concur: Kline, P.J., Haerle, J.