Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA031034, Lisa M. Chung, Judge.
Jonathan B. Steiner, Executive Director, California Appellate Project, and Cheryl Lutz, Staff Attorney, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General of the State of California, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Calvin Taylor was convicted, following a jury trial, of one count of possession of cocaine base in violation of Health and Safety Code section 11350. Appellant admitted that he had suffered a prior felony conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). The trial court sentenced appellant to the upper term of three years for the current conviction, doubled to six years pursuant to the Three Strikes law. The trial court struck the Penal Code section 667.5 allegation which would have resulted in an additional one-year enhancement term.
Appellant appeals from the judgment of conviction, contending that the trial court's imposition of the upper term violated California law and his federal constitutional rights as set forth in Cunningham v. California (2007) 549 U.S. __. He further contends that his trial counsel's failure to request the court to dismiss his prior strike conviction constitutes ineffective assistance of counsel. At our request, the parties submitted letter briefs addressing the effect of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. In his brief, appellant maintains his contention that his sentence violates the Sixth Amendment as set forth in Cunningham, supra. We see no violation of appellant's Sixth Amendment rights. We affirm the judgment of conviction.
Facts
About 3:00 p.m., on February 10, 2005, Los Angeles Deputy Sheriff Daniel Wolanski observed a person who looked like appellant leave room 123 of the EZ-8 Motel and engage in a hand-to-hand exchange in a motel parking lot. The person was wearing a dark, short-sleeved button-down shirt. Deputy Wolanski observed the transaction through binoculars from about 100 yards away.
Deputy Wolanski drove to the motel and entered room 123. There, he found appellant and five women. Appellant was wearing a white t-shirt, but matched the physical description of the person the deputy had observed in the parking lot.
In the closet area of the room, Deputy Wolanski saw at least five men's shirts, all size 3XL, and some women's clothing. In a pocket of one of the shirts, the deputy found a piece of black plastic. Inside the plastic were 47 individually wrapped pieces of rock cocaine. Some of the pieces were wrapped in black plastic and they were heat-sealed. Deputy Wolanski also found a scale, a knife and measuring cup in the closet. Another deputy found another scale, some empty baggies, a bag of marijuana and some baking soda in a refrigerator in the room.
Searches of appellant yielded $720 in $20 bills, about $170 in small bills and a credit card receipt. The receipt was dated February 10 and matched the motel's records showing payment for the room. Appellant's name, however, was not the name given by the person renting the room.
A search of appellant's car uncovered a small amount of cocaine base wrapped in black plastic.
In Deputy Wolanski's opinion, based on all the evidence, the cocaine was possessed for purposes of sale.
In his defense, appellant presented the testimony of Helen Tobias, a desk clerk at the EZ-8 Motel. She testified that room 123 was rented by Archester Daniels on February 9. Appellant paid for the night of February 10, but the room remained in Daniels's name. Tobias had seen appellant around the premises while Daniels was there. Appellant told her that Daniels was his brother. She had also seen appellant with another brother at the motel. Appellant's brothers were smaller than he was. Tobias had seen females staying with Daniels in the motel room. One of the women was bigger than appellant.
Appellant testified in his own behalf that he was paid every two weeks by the County of Los Angeles for home health work that he provided to an uncle. Appellant introduced a copy of a pay stub issued February 9 into evidence. He testified that he cashed the check on February 10 and went to the EZ-8 Motel intending to watch a live sex show in the room.
Appellant stated that the shirt containing the contraband was not his and he had never seen it before. He had never seen the black plastic package in the car before. Appellant's brother Kenny Taylor and a large woman named "Unique" were allowed inside the car when appellant was not present. Both were at the motel the day appellant was arrested. Other people had ridden in the car.
Discussion
1. Upper term – California law
Appellant was charged with possession for sale of cocaine base, and it was alleged that he had a prior strike conviction. Before trial, the prosecutor offered appellant a five-year sentence based on the charge alone. Appellant was acquitted of the possession for sale charge and convicted of the lesser offense of simple possession. He contends that the trial court abused its discretion in sentencing him to the high term of three years for that conviction, since that term was then doubled pursuant to the three strikes law, resulting in a longer term than the pretrial offer. He also contends that the trial court relied on improper aggravating factors and an inapplicable probation report.
Appellant did not object to the imposition of the upper term and so has forfeited his right to raise this claim on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353-355.) Assuming that the claim was not waived, we see no abuse of discretion.
California Rules of Court, rule 4.421, subdivision (b) includes the following as aggravating factors: "(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; (3) The defendant has served a prior prison term; . . . and (5) The defendant's prior performance on probation or parole was unsatisfactory." The record shows that the trial court relied on the above three aggravating factors, all of which are proper.
The prosecutor asked the court to follow the recommendations of the probation report, which listed numerous aggravating factors and recommended the high term. The court stated that it would not consider appellant's prior strike conviction as an aggravating factor, "[b]ut I do note he's had prior, both misdemeanor probationary grants, as I see a 12500 here. He has felony drug-related offenses that are separate and apart from this. [¶] I see an 11351 charge around December 16th, 2001, where he received three years state prison. [¶] And he has other records that are theft-related offenses where he's had prior opportunities, prior arrests and contacts, both drug and theft-related, that the aggravating factors here would outweigh the mitigating factors."
The trial court's reference to "here" seems to indicate that the court was consulting the probation report. That report shows that appellant had a sustained juvenile petition for threatening a school employee in 1998 and was placed on home probation. In 1999, appellant violated probation. In 1999, another juvenile petition was sustained, apparently for possession of a controlled substance. In May 2001, appellant was arrested on a charge of possession of marijuana and ordered to attend Narcotics Anonymous. The charge was subsequently dismissed in the interests of justice. In July 2001, appellant was ordered to serve 180 days in county jail. In December 2001, appellant was convicted of possession of cocaine for sale. While on probation for that offense, he was convicted of burglary (the strike conviction in this case) and sent to state prison. While on parole following his prison term, appellant was convicted of misdemeanor driving without a license in violation of Vehicle Code section 12500. He violated parole and was returned to prison.
Two convictions and two sustained juvenile petitions in a six-year period qualifies as numerous. Thus, the trial court properly relied on appellant's prior convictions and sustained petitions as an aggravating factor. The court also noted that appellant had served a prison term in connection with a prior drug conviction, a proper aggravating factor. The trial court noted two grants of probation to appellant. The probation report indicated that appellant violated both probation grants. Thus, this, too, was a proper aggravating factor.
Appellant points out that the trial court referred to appellant's arrests and contacts which did not result in convictions, or even in charges being filed in some cases and correctly contends that such arrests and contacts are not proper aggravating factors. Assuming for the sake of argument that the trial court did mistakenly believe that arrests were an aggravating factor, we see no reasonable probability that appellant would have received a more favorable sentence if the trial court had not considered his arrests. The trial court found only one mitigating factor, appellant's compliant courtroom behavior. This is at best a weak mitigating factor when compared to appellant's lengthy criminal history.
Appellant also points out that the trial court relied on the probation report, and that report assumed that appellant would be convicted of the charged offense of possession for sale of cocaine. However, the probation report's recommendation of the high term was based almost entirely on appellant's criminal history. Thus, we see nothing improper about the trial court's reliance on the probation report.
We see nothing to support appellant's claim that the imposition of the upper term was "punitive" because he turned down the prosecutor's pretrial offer. The bare fact that appellant's post-conviction sentence was longer than the pretrial offer proves nothing. Pretrial offers are always lower than a defendant's potential exposure if convicted, and usually lower than the sentence ultimately imposed if the defendant is convicted.
2. Prior conviction
Appellant contends that his trial counsel's failure to request the court to dismiss his prior strike conviction constitutes ineffective assistance of counsel.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "'"Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citations.]"'" (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)
When an appellant makes an ineffective assistance claim on appeal, we look to see if the record contains any explanation for the challenged aspects of the representation. If the record is silent, then the contention must be rejected "'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation' [citation]." (People v. Haskett (1990) 52 Cal.3d 210, 248.)
Here, there does not seem to be a satisfactory explanation for trial counsel's failure to request that the court strike appellant's prior conviction. There was simply no downside to such a motion and no strategic reason for such an omission. We see no probability that appellant would have received a more favorable sentence if counsel had made such a motion, however.
Appellant contends that the trial court's comments show that the court did not believe that it had discretion to strike the prior conviction. The trial court did refer to the mandatory nature of the three strikes law. However, that reference alone does not show that the trial court was unaware of its discretion to strike. The application of the three strikes law is mandatory unless the defendant shows that he falls outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148.) Appellant's trial counsel, of course, made no such showing here.
Appellant had prior offenses apart from his strike conviction. His offenses began six years ago, when he was a juvenile, and continued after he became an adult. Two of those offenses were drug-related, as was his current offense. Appellant had previously been ordered to attend Narcotics Anonymous, yet he continued to commit drug offenses. He had previously violated probation and parole, and was on parole at the time he committed the current offense. The fact that he has a supportive family does not put him outside the spirit of the Three Strikes law.
3. Upper term – federal constitutional law
Appellant contends that the imposition of the upper term by the trial court violated his federal constitutional right to a jury trial as set forth in Cunningham v. California (2007) 549 U.S. __.
In Cunningham, supra, the U.S. Supreme Court held that California's procedure for selecting a upper term violated a defendant's Sixth and Fourteenth Amendment right to jury trial because it gave the judge, not the jury, the authority to find facts that exposed a defendant to an elevated upper term sentence. The court explained that "the 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." (Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].)
The California Supreme Court has explained the application of Cunningham to California's sentencing law: "Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California's current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court's exercise of its discretion in selecting the appropriate term from among those authorized for the defendant's offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition 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." (People v. Black, supra, 41 Cal.4th at pp. 815-816.)
The court has also explained that the "prior conviction" exception should not be read too narrowly. This exception includes "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." (People v. Black, supra, 41 Cal.4th at p. 819.) Examples of related issues which fall within the exception are whether the convictions are numerous or of increasing seriousness. (Id. at pp. 819-820.)
Appellant contends that the court in Black erred in holding that only one constitutionally valid aggravating factor is required to render an upper term valid under Cunningham, and that the trial court is then free to make factual findings to use in the exercise of its discretion in selecting the appropriate term from among those authorized for the defendant's offense. Appellant contends that Cunningham requires there to be sufficient constitutionally valid aggravating factors to outweigh any mitigating factors. He also contends that the single factor rule violates California's Determinate Sentencing Law at the time he was sentenced. We are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, the trial court imposed the upper term in part because appellant had been convicted of and served a prior prison term for a felony violation of Health and Safety Code section 11350. These are valid factors under Cunningham. (People v. Black, supra, 41 Cal.4th at pp. 819-920; see People v. Thomas (2001) 91 Cal.App.4th 212, 220-223 [court's finding that defendant served prior prison term falls within exception].) As we discuss in section 1, supra, the trial court's decision that the factors in aggravation outweighed those in mitigation was proper under state law.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.