Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS021775
OPINION
ELIA, J.
Defendant Arthur Tarango was convicted of conspiracy to bring a controlled substance into prison (Pen. Code, §§ 182, subd. (a)(1), 4573; see Pen. Code, § 184) following a jury trial. Defendant waived a jury for determination of an allegation of a prior "strike" conviction of assault (§ 1170.12), which the court found true. The court sentenced defendant to a total term of eight years, which consisted of an upper term of four years doubled pursuant to section 1170.12, subdivision (c)(1).
All further statutory references are to the Penal Code unless otherwise stated.
Citing Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348], defendant claims on appeal that his constitutional rights to jury trial and due process were violated by imposition of the upper term based upon aggravating factors that were not found true by a jury beyond a reasonable doubt. He also asserts that, if this court finds his claims were waived, his counsel rendered ineffective assistance of counsel.
This is the third time the case is before us. We initially evaluated defendant's contentions in light of People v. Black (2005) 35 Cal.4th 1238 (Black I), which we were bound to follow (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Black I held that that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Id. at p.1244.) Black I was subsequently abrogated by the United States Supreme Court in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham).
In Cunningham, the United States Supreme Court declared: "[T]he Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]" (Id. at p. ___ [127 S.Ct. at p. 860].) In regard to California's determinate sentencing law (DSL), the court stated: "Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt . . ., the DSL violates Apprendi's bright-line rule: Except for a prior conviction, '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.' 530 U.S., at 490, 120 S.Ct. 2348." (Id. at p. ___ [127 S.Ct. at p. 868 ].) The court held: "Contrary to the Black court's holding, our decisions from Apprendi to Booker point to the middle term specified in California's 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. ___ [127 S.Ct. at p. 871], fn. omitted.)
The United States Supreme Court granted defendant Tarango's petition for a writ of certiorari, vacated our judgment, and remanded the case to us for further consideration in light of Cunningham. Upon remand, this court reversed the judgment and remanded the matter to the trial court for the limited purpose of resentencing in light of Cunningham. After our new opinion was filed, the California Supreme Court handed down People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
In Black II, the California Supreme Court agreed 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 requirements of Apprendi and its progeny, any additional fact finding 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, supra, 41 Cal.4th at p. 812.) In Sandoval, the California Supreme Court concluded that "[t]he 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 . . . (Chapman), as applied in Neder v. United States (1999) 527 U.S. 1, 119 S.Ct. 1827 . . . ." (Sandoval, supra, 41 Cal.4th at p. 838.)
The People petitioned for review in the California Supreme Court. The court granted review and transferred the matter back to this court for reconsideration in light of Black II and People v. Sandoval.
A. Facts and Procedural History
In a second amended information, defendant was charged with two counts of conspiracy. The first count charged conspiracy to commit the crime of transportation and sale of a controlled substance in violation of Health and Safety Code section 11379, subdivision (b). The second count charged conspiracy to commit the crime of bringing a controlled substance into prison in violation of section 4573. As to both counts, it was alleged that defendant had previously suffered a conviction of assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) with an enhancement under section 12022.7 (personal infliction of great bodily injury) (§ 1170.12). The first count was dismissed.
At trial, the evidence showed the following. During the fall of 2001, Parole Agent Irene Perez was employed as an investigator by the Investigative Services Unit of the Salinas Valley State Prison. In about October or November of 2001, Perez began conducting an investigation of defendant, an inmate at the prison.
In the course of her investigation, Perez reviewed a letter dated November 5, 2001 from defendant's mother to defendant. It contained the following language: "What's going on with Christina? I told her that I would pick up the baby clothes and money if she wasn't planning on talking to you any longer." Perez reviewed a letter from defendant to his mother. The following language in the letter led agent Perez to believe that defendant was discussing a narcotics transaction: "I hope she does not think she is going to do me wrong and just take off like that and make me tell the fellows that I lost it. That will put me in a very difficult position in here. I'm going to need to ask you to make a call to her house and ask her what is going on. Ask her if she has any intentions of coming to see me, and if not, to give you all of the baby's clothes and the funds that have gotten there."
Perez began to monitor calls. During a telephone call between defendant and his mother, his mother indicated she had called Christina. She told defendant, "[S]he had already given me all the baby clothes." Defendant subsequently asked, "Was there three sets of clothes that she gave you for the baby?" His mother replied that she did not know and she did not even look through it. Later in the phone conversation, they made a third party call to Christina and defendant spoke with Christina directly. Perez testified that inmates use code words when discussing drugs on the telephone and, in this case, "baby clothes" meant narcotics.
On November 24, 2001, defendant's mother attempted to visit defendant. His mother consented to a search and surrendered a blue balloon from her vaginal area. Inside the balloon, there were three bindles containing approximately 60 grams of a substance that tested positive for methamphetamine. A unit of sale in the prison is about a quarter gram, which is approximately the size of a matchstick head. A matchstick head was worth about $45 to $50 in prison.
The jury found defendant guilty of the crime of conspiracy to bring a controlled substance to the prison. At sentencing, the trial court explained its choices as follows: "[I]n looking at the overall situation, the fact of a prior non-strike murder conviction the defendant suffered as a juvenile; his ongoing gang affiliation; the clear indication in this case of in-prison dealing, these drugs were headed for Mr. Tarango, and he clearly was going to distribute them within the institution; the fact that it was a large amount of drugs, $10,000 worth; also, given the fact that he has been a failure on probation in the past; his attitude indicates a clear commitment to gangs and crime, and a deep commitment to those things; for those reasons, the court both denies probation and selects the upper term of four years in State Prison, doubles that to an 8-year State Prison commitment by virtue of the one strike that was found to be true."
B. Forfeiture
The People urge us to find that defendant forfeited his claim of Blakely error by failing to object below. "The forfeiture doctrine is a 'well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been--but were not--raised in the trial court. [Citation.]' [Citations.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) But "[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 237-238.) Attorneys are not expected to anticipate subsequent interpretations of law "contrary to the apparently prevalent contemporaneous interpretation." (In re Gladys R. (1970) 1 Cal.3d 855, 861.)
In 2005, the California Supreme Court took the position in Black I that Blakely and Apprendi were clearly inapplicable to California's determinate sentencing law. (Black I, supra, 35 Cal.4th 1238.) The court stated: "[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the 'statutory maximum' and a trial court's imposition of an upper term sentence does not violate a defendant's right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker." (Id. at p. 1254.)
Black II recognized that "[p]rior to Blakely, it was widely assumed that for the purposes of the rule established in Apprendi, the maximum term authorized by the jury's verdict was the upper term." (Black II, supra, 41 Cal.4th at p. 811; see People v. Sengpadychith (2001) 26 Cal.4th 316, 326 ["This is what Apprendi teaches us: Except for sentence enhancement provisions that are based on a defendant's prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the 'prescribed statutory maximum' punishment for that crime"].) In Black II, the California Supreme Court determined that "at least with respect to sentencing proceedings similar to the one here at issue, preceding the Blakely decision, a claim of error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsel's failure to object at trial." (Id. at p. 812.) Black II agreed that Blakely had brought about a "sea change" in sentencing law. (Black II, supra, 41 Cal.4th at p. 812.)
In People v. Sandoval, the California Supreme Court recognized that a Blakely claim of error was not forfeited by not raising it after Black I and before Cunningham. (People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) This is because a trial court would have been bound by the Black I decision and any objection would have been futile. (Ibid.)
Defendant was actually sentenced almost three weeks after Blakely was decided, on July 14, 2004. Consequently, we can neither say that the application of Blakely/Apprendi principles to California's determinate sentencing law was completely unforeseeable at that time because Blakely had not been decided nor that an objection would have been futile because Black I was controlling. Accordingly, it appears that defendant's claim of Blakely error was forfeited by the failure to raise it at the time of sentencing. (Cf. Black II, supra, 41 Cal.4th at pp. 810-812; People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4; cf. also People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) Even if the claim of Blakely/Apprendi error was not forfeited, we must reject the claim under Black II.
Even if defense counsel should have interposed a Blakely objection, we must reject defendant's ineffective assistance of counsel claim because the prejudice prong cannot be satisfied (see Strickland v. Washington (1984) 466 U.S. 668, 687, 692, 694 [104 S.Ct. 2052]). As we discuss below, the claim of Blakely and Apprendi error must be rejected under Black II.
C. Black II
Under Apprendi, "[o]ther than the fact of a prior conviction, 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." (Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) In Black II, the California Supreme Court concluded that Apprendi's rule was not violated by imposition of the upper term in that particular case because two aggravating circumstances rendered him eligible for the upper term without offending the Sixth Amendment right to jury trial. (Black II, supra, 41 Cal.4th at pp. 816, 820.)
The California high court declared: "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.' " (Black II, supra, 41 Cal.4th at p. 813, fn. omitted.) Therefore, "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding 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 elaborated: "[S]o 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." (Black II, supra, 41 Cal.4th atp. 813.) "[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." (Id. at p. 816.) As to Black, the court concluded that the "defendant's constitutional right to a jury trial was not violated by the trial court's imposition of the upper term sentence for his conviction of continuous sexual abuse" (ibid.) because "defendant's criminal history and the jury's finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term." (Id. at p. 820.)
Specifically in regard to the defendant's use of force, the California Supreme Court determined: "Contrary to defendant's suggestion, the circumstance that California Rules of Court, rule 4.421(a)(1) lists 'great violence' or the 'threat of great bodily harm' as an aggravating factor does not signify that the jury's finding (under section 1203.066), which did not include a finding that 'great' violence or harm was used or threatened, cannot be a valid aggravating circumstance in defendant's case. The trial court is not limited to the aggravating circumstances listed in the rules. (Cal. Rules of Court, rule 4.408(a).) . . . Rule 4.421(a)(1)'s inclusion of 'great' violence or harm does not preclude a finding that a lesser degree of force or violence is an aggravating circumstance for a crime that can be committed without any force or violence . . . ." (Black II, supra, 41 Cal.4th atp. 817.) The court explained: "An aggravating circumstance is a fact that makes the offense 'distinctively worse than the ordinary.' (People v. Moreno (1982) 128 Cal.App.3d 103, 110 . . .; People v. Young (1983) 146 Cal.App.3d 729, 734 . . . .) Aggravating circumstances include those listed in the sentencing rules, as well as any facts 'statutorily declared to be circumstances in aggravation' (Cal. Rules of Court, rule 4.421(c)) and any other facts that are 'reasonably related to the decision being made.' (Cal. Rules of Court, rule 4.408(a).)" (Ibid.)
In regard to defendant's criminal history, the California Supreme Court interpreted Apprendi's "prior conviction" exception broadly. (Black II, supra, 41 Cal.4th atpp. 819-820.) The court stated: "[N]umerous 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. (See cases cited in McGee, supra, 38 Cal.4th at pp. 703-706 . . .; see also United States v. Smith (6th Cir.2007) 474 F.3d 888, 892 [no right to a jury trial concerning the circumstance whether defendant's criminal history was ' "extensive and egregious" '].)" (Id. at p. 819, fn. omitted.) It explained: "The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' (Cal. Rules of Court, rule 4.421(b)(2)), 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. (McGee, supra, 38 Cal.4th at p. 706 . . . .)" (Id. at pp. 819-820, fn. omitted.) The court also rejected the defendant's argument that "the evidence of his prior convictions consisted only of hearsay statements, contained in the probation report, which are insufficient as a matter of law to prove the prior convictions beyond a reasonable doubt" because the court implicitly concluded that prior convictions need only be proved by a preponderance of the evidence, the standard presumably applied by the trial court. (Id. at p. 820, fn. 9.)
In this case, the probation report specified that defendant's juvenile record included a commitment to the California Youth Authority for a violation of Penal Code section 187, subdivision (a). The juvenile adjudication of murder was one of the aggravating factors upon which the trial court relied in imposing the upper term. Although California Rules of Court, rule 4.421(b)(2) specifies "[t]he defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness" as a factor in aggravation, the listing of that particular circumstance does not mean that a single prior juvenile adjudication of a criminal violation cannot be a valid aggravation circumstance raising the statutory maximum to the upper term. (See Black II, supra, 41 Cal.4th at p. 817.) Under a Black II analysis, this one fact rendered defendant eligible for an upper term sentence. (See People v. Grayson, supra, 155 Cal.App.4th at p. 1069; People v. Tu (2007) 154 Cal.App.4th 735, 748-751.) Therefore, the sentencing court was constitutionally entitled to "rely upon any number of aggravating factors in exercising its discretion to select the appropriate term . . . regardless whether the facts underlying those circumstances have been found true by a jury." (Black II, supra, 41 Cal.4th at p. 813.)
The report also stated that defendant appeared to have an extensive juvenile record but "both the San Bernardino and Los Angeles County Probation Departments were not willing to disclose documentation of his sustained juvenile offenses to the Monterey County Probation Office."
"A minority of courts in California and elsewhere have determined juvenile adjudications may not be properly characterized as prior convictions for purposes of the Apprendi/Almendarez-Torres exception." (People v. Grayson (2007) 155 Cal.App.4th 1059, 1067.) The California Supreme Court has now granted review in People v. Nguyen, which espoused the minority view. (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847.)
Furthermore, in sentencing defendant, the court mentioned as aggravating circumstances "the fact that he has been a failure on probation [sic] in the past" and his "clear commitment" to crime. Unsatisfactory performance on parole is an additional aggravating factor related to recidivism, which may be determined by reference to official records and encompassed by Apprendi's prior conviction exception. (See People v. Yim (2007) 152 Cal.App.4th 366, 370-371 [post-Cunningham, pre-Black II].) In Black II, the California Supreme Court stated: "As we recognized in McGee, 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. [Citations.]" (Black II, supra, 41 Cal.4th at p. 819.) The probation report in this case indicated that in 1998 defendant was convicted of assault (§ 245, subd. (a)(1)) committed while in prison custody and, after being released on parole, he violated parole and he was returned to custody. He committed the present offense in state prison. Defendant's criminal history of recidivism renders him eligible for the upper term under Black II.
We find defendant's claim of Apprendi and Blakely error is untenable under Black II. In light of our conclusions, it is unnecessary to engage in harmless error analysis.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.