Opinion
A117678
5-30-2008
THE PEOPLE, Plaintiff and Respondent, v. JAMES TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED
James Taylor (Taylor) appeals from a sentence imposed after he admitted a probation violation. He contends that the court erred in imposing the upper term of sentence and requiring him to pay a court security fee under Penal Code section 1465.8. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In 2003, Taylor was charged with felony sale of a controlled substance (cocaine) (Health & Saf. Code, § 11352, subd. (a)) and felony possession of a controlled substance (heroin) (Health & Saf. Code, § 11350, subd. (a)). The complaint further alleged that Taylor was ineligible for probation (Pen. Code, § 1203.073, subd. (b)(7)), committed the alleged crimes while out on bail (Pen. Code, § 12022.1), and had two prior narcotics convictions (Health & Saf. Code, § 11370, subds. (a), (c)).
As set forth in the probation officers report, Taylor sold an undercover officer a rock of cocaine for $20. In a search incident to his arrest, two balloons containing heroin were found in his sock.
In July 2004, Taylor entered into a negotiated disposition in which he pleaded guilty to selling a controlled substance. The remaining charge and allegations were dismissed. In September 2004, the court suspended imposition of sentence and placed Taylor on supervised probation for three years.
On January 9, 2007, upon motion by the District Attorney, Taylors probation was administratively revoked, based on an assault he allegedly perpetrated on January 7, 2007.
At a contested probation revocation hearing on March 23, 2007, San Francisco Police Officer Greg Buhagiar testified that he was on patrol on January 7, 2007, when he observed Taylor standing over another man, "throwing a flurry of punches at the victims head and face area." Taylor continued the assault, even after making eye contact with the officers. The victims head was "split open" and "bleeding profusely." Taylor was arrested, and the officers determined that Taylor had struck his victim with a handkerchief containing a ball bearing, which was about the size of a golf ball or walnut. The defense maintained that Taylor was acting in self-defense. The court found that even if Taylor had initially acted in self-defense, the right to self-defense had ended because his semi-conscious victim was no longer capable of inflicting injury. The court found that Taylor violated the terms of his probation.
According to the clerks minutes, the court revoked Taylors probation on May 2, 2007. On that same date, the court sentenced him to the upper term of five years in state prison for selling cocaine, based on the finding that Taylors 11 prior convictions were numerous. (Cal. Rules of Court, rule 4.421(b)(2).) The court also imposed a $20 court security fee pursuant to Penal Code section 1465.8.
All rules references are to the California Rules of Court.
This appeal followed.
II. DISCUSSION
A. Imposition of the Upper Term
In explaining his reasons for imposing the upper term, the sentencing judge stated: "Im making a finding he has numerous convictions, both felonies and misdemeanors, a lifetime of them, and he has not — he has not benefitted by opportunities to rehabilitate himself." (Rule 4.421(b)(2).) Finding that factors in aggravation outweighed factors in mitigation, the court imposed the five-year upper term. Taylor argues that the undisputed fact of his 11 prior convictions was not sufficient for imposition of the upper term, and the sentence violated his constitutional rights and constituted an abuse of discretion. His arguments have no merit whatsoever.
1. Cunningham and Taylors Numerous Prior Convictions
Taylor contends the imposition of the upper term, based on an aggravating factor not found by a jury beyond a reasonable doubt, violated his rights to a jury trial and due process. (Cunningham v. California (2007) 549 U.S. 270, 127 S. Ct. 856, 863-864 (Cunningham).) As he acknowledges, however, our Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black) held that the aggravating factor of recidivism applicable where a "defendants prior convictions . . . are numerous or of increasing seriousness" (Cal. Rules of Court, rule 4.421(b)(2), italics added), falls within an exception to the general rule that facts used to impose the upper term must be admitted by the defendant or found true beyond a reasonable doubt. (Black, at p. 818.) We will follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In the matter before us, there was sufficient evidence to support the courts finding of the recidivism aggravating factor. According to the probation report, Taylor suffered the following prior convictions: a 1976 conviction in Rhode Island for possession of stolen property; a 1976 conviction in Rhode Island for tampering with an automobile; a 1980 conviction in Michigan for defrauding a boarding house keeper; a 1985 conviction in California for taking a person for prostitution without consent; a 1987 conviction in California for assault; a 1988 conviction in California for providing false identification to an officer; two 1990 convictions in California for vandalism; a 1990 conviction in California for offensive words in a public place; a 1991 conviction in California for possession of a controlled substance; and a 1995 conviction in California for possession of a controlled substance. Three of these prior convictions—the 1987 conviction for assault and the 1991 and 1995 convictions for possession of a controlled substance—were felonies. His 11 prior convictions, including three felonies, justified the finding that he had numerous prior convictions within the meaning of Rule 4.421(b)(2). (See, e.g., People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions for driving while intoxicated were "numerous"]; People v. Stuart (2008) 159 Cal.App.4th 312, 314 ["Six prior convictions are plainly `numerous. Because one legally sufficient aggravating circumstance was justified based on defendants record of prior convictions, the trial courts finding of additional aggravating circumstances did not violate defendants constitutional rights under Black."].)
Taylor contends his 11 convictions were not really numerous. In particular, he argues, because the Searle court noted that the defendants convictions had "occurred within 11 months of each other," the density and distribution of prior convictions must be considered in determining their numerosity. (Searle, supra, 213 Cal.App.3d at p. 1098.) Rule 4.421(b)(2), however, refers to convictions that are numerous, not convictions that are numerous and occurring within any limited period of time. Furthermore, Searle does not state that density and distribution of convictions must be considered in determining whether prior convictions are numerous, or that a number of prior convictions cannot be "numerous" under rule 4.421(b)(2) unless they took place within 11 months of each other. Such a bright-line rule would indeed be unwise, since it would preclude a finding of numerosity merely because a defendants prior offenses were so grievous that he spent over 11 months in jail after each of his multiple convictions. In stark contrast to Taylors contentions, the court in Searle simply stated: "In addition, we believe that three convictions are numerous within the meaning of rule 421(b)(2) [precedessor to rule 4.421(b)(2)]." (Searle, at p. 1098, italics added.) So do we.
In any event, Taylor fails to establish that the timing of his prior convictions precludes the application of rule 4.421(b)(2). He emphasizes that his three prior felony convictions were distributed over 10 years, with the third felony conviction occurring 10 years before the conviction in the instant case. (Actually, the April 1995 felony conviction was about nine years before the July 2004 conviction for selling cocaine.) But rule 4.421(b)(2) refers simply to "prior convictions," not prior felony convictions. Substantial evidence supported the courts finding that the recidivism aggravating factor of rule 4.421(b)(2) applied.
At the sentencing hearing, defense counsel did not argue that Taylors convictions were not numerous. Instead, he argued that they were not of increasing seriousness, contending: ". . . I dont think the sentencing factor is `numerous or, I think its `numerous and, because the point is its supposed to show a pattern of increased criminality." (Italics added.) But Rule 4.421(b)(2) is quite clear: "The defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness." (Italics added.)
Taylor has not demonstrated that the imposition of the upper term violated his constitutional rights.
2. Abuse of Discretion
Taylor contends the trial court nonetheless abused its discretion in imposing the upper term. (See Pen. Code, § 1170, subd. (b); People v. Sandoval (2007) 41 Cal.4th 825, 847.) In this regard, it is Taylors burden "to clearly show that the sentencing decision was irrational or arbitrary." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
As mentioned, the trial court found that Taylor had numerous prior convictions—"a lifetime" of priors. The court found only one mitigating factor—that Taylor had admitted guilt early. The court imposed the upper term, concluding that Taylors "numerous convictions far outweigh . . . the one factor in mitigation . . .."
In his attempt to show that the trial courts weighing of the relevant sentencing factors constituted an abuse of discretion, Taylor points out that, when a sentence is imposed after revocation of probation, "[t]he length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term." (Rule 4.435(b)(1).) Thus, a defendants bad acts while on probation should not influence his sentence upon revocation of probation. (See People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163.)
Taylor then refers us to the probation report prepared for his initial sentencing, which expressed the view that Taylor should get a chance on probation rather than being sent at that time to prison. The report stated: "Although it is felt, given Mr. Taylors criminal history, that he may have difficulty completing a grant of probation, it is not felt that the current charges warrant a state prison commitment at this time. In his favor, the crime involved no physical harm or financial loss to another, he was not on probation or parole when he committed the instant offense, and the crime involved a relatively small amount of contraband. Further, during the pre-sentence interview, Mr. Taylor admitted culpability, takes responsibility for his criminal actions, and states he will comply with the conditions of probation and orders of the Court." Because his crime was deemed by the probation department not to warrant serious punishment at the time of the conviction, he argues, the courts decision upon revocation of probation to impose an aggravated term must have been an abuse of discretion.
Taylors argument is meritless. In the first place, the probation officers report discussed whether probation should be granted, not whether the aggravating factor of his numerous prior convictions (which the probation officer acknowledged in the report) outweighed the mitigating factor of his early admission of guilt. The trial court in 2004 followed the probation officers initial recommendation by granting Taylor probation, and then Taylor failed to abide by its terms. The report had not addressed whether an upper term should be imposed if Taylor was unsuccessful or no longer eligible for probation. The fact that the court initially agreed with the probation department that probation was appropriate does not preclude the court from concluding, upon revocation of probation, that an aggravating factor outweighs a mitigating factor for purposes of imposing the upper term. (People v. Morado (1990) 221 Cal.App.3d 890, 893-895.)
Moreover, while the probation officers recommendation suggests his view that Taylors offense did not warrant imprisonment, the trial court may choose not to follow the probation departments sentencing recommendation. "In the final analysis sentencing determination is a matter of judgment for the court and not for the probation officer." (People v. Sanchez (1982) 131 Cal.App.3d 718, 739.) The fact that the courts sentence upon revocation of probation differs from the probation departments prior recommendation does not, in itself, establish an abuse of discretion.
Taylor adds that the supplemental probation report prepared after his 2007 arrest stated: "We are outraged by the defendants actions. Clearly, Mr. Taylors conduct poses a serious risk to [the] safety and tranquility of the community." From this, Taylor speculates that the sentencing judge "could not but have its impression of the culpability of appellant shaped by the rather disagreeable assault that had precipitated the revocation of probation," and thus the court must have relied on the facts of the 2007 assault and thereby abused its discretion.
We disagree. By all appearances from the record, the trial court was not only entirely cognizant of the law, it in fact exercised its discretion within the laws confines. The sentencing judge referred to the original probation report at the sentencing hearing. He also specifically represented that he would base the sentence only upon the facts and circumstances as they existed at the time of the original grant of probation. "THE COURT: Excuse me, Mr. Doering [defense counsel], lets be clear. The Court cannot, by law, and will not consider any of the facts which constituted the violation as a factor in sentencing. I go back to the date of sentencing, look at the situation as it existed then. [¶] MR. DOERING: Okay. [¶] THE COURT: To make it clear, Im not going to use anything related to the violation in terms of using my discretion." There is no reason to doubt the sincerity or veracity of the courts remarks. Nor can it be said that, because the probation department believed that Taylor now poses a serious risk to the community, the sentencing judge was without discretion to impose the upper term.
Taylor has failed to establish error in the imposition of the upper term of sentence.
B. Security Fee
Taylor contends in his opening brief that the court erroneously required him to pay a $20 security fee under Penal Code section 1465.8. He argues that imposition of the fee constitutes an improper retroactive punishment, because he committed his crime before Penal Code section 1465.8 was enacted, even though he was convicted after its enactment.
After Taylors opening brief was filed, our Supreme Court rejected this very argument in People v. Alford (2007) 42 Cal.4th 749. Specifically, the court concluded that the Legislature "intended to impose the court security fee to all convictions after its operative date" in August 2003. (Id. at pp. 753-759 & fn. 2.) Taylor acknowledges in his reply brief that we must follow this binding precedent. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
III. DISPOSITION
The judgment is affirmed.
We concur.
JONES, P. J.
STEVENS, J.