Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06F174, 06F3020
ROBIE , J.
Defendant Ben Weldon Teasley III pled guilty to manufacturing methamphetamine and admitted a prior narcotics-related conviction and two prior prison terms. In a separate case, defendant pled guilty to child endangerment. In exchange, all remaining charges and an enhancement were dismissed. At defendant’s sentencing hearing, the People dismissed the prior prison term allegations. Probation was denied and defendant was sentenced to state prison for a term of 11 years and 4 months.
On appeal, defendant contends his sentence violated the United States Supreme Court’s decisions in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] . We conclude that the trial court’s imposition of the upper term did not run afoul of Blakely and Cunningham. Accordingly, we shall affirm.
Defendant’s appellate counsel initially filed an opening brief that set forth the facts of the case and requested this court to review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Thereafter, appellate counsel filed a supplemental brief arguing that imposition of the upper term was unconstitutional under Cunningham. Because appellate counsel has now filed a brief raising a “specific issue” (Wende, at p. 441), we need not conduct an examination of the entire record and, therefore, have limited our consideration to the issues raised in the parties’ supplemental briefs.
FACTUAL BACKGROUND
During a search of a probationer’s residence, chemicals and other items associated with a methamphetamine lab were discovered in a shed. The probationer reported that defendant had brought these items to the shed and asked him to hold on to them. A search warrant was obtained for defendant’s residence. On arrival, police officers discovered defendant’s four children (ages 6 to 12) home alone. When it was determined that defendant and his wife would not be returning home until midnight, the children were placed in protective custody and a search was conducted. Items associated with the manufacture of methamphetamine were found in the garage, including a homemade hydrogen chloride gas generator that was in a dangerous state and posed a risk to anyone in the area. Children’s toys and bikes were also located in the garage. All of defendant’s children tested positive for amphetamines.
DISCUSSION
Defendant maintains the trial court violated the Supreme Court’s rulings in Blakely and Cunningham by sentencing him to an upper term on his conviction for manufacturing methamphetamine. We disagree.
In Blakely, the United States Supreme Court relied on Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] in holding that any circumstance “‘[o]ther than the fact of a prior conviction’” that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Blakely v. Washington, supra, 542 U.S. at pp. 301, 303-304 [159 L.Ed.2d at pp. 412, 413-414].) The statutory maximum is the greatest sentence the court can impose based on facts reflected in the jury’s verdict or admitted by the defendant. (Id. at p. 303 [159 L.Ed.2d at p. 413].)
Subsequently, the California Supreme Court held in People v. Black (2005) 35 Cal.4th 1238, 1244, that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law” does not violate Blakely. However, in Cunningham, the United States Supreme Court rejected this holding and concluded that the middle term is the statutory maximum under California’s determinate sentencing scheme, reiterating the exception to this rule set forth in its previous decisions for prior convictions. (Cunningham v. California, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 873].)
Initially, we reject the People’s contention that defendant has forfeited his claim by failing to object on this basis in the trial court. “Reviewing 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.” (People v. Welch (1993) 5 Cal.4th 228, 237.) At the time of defendant’s sentencing on August 23, 2006, Black had upheld the California sentencing scheme under Blakely, and Cunningham had yet to be decided. Thus, Black was still binding precedence at the time of defendant’s sentencing, and an objection based on Blakely would have been futile.
We turn to the merits of defendant’s claim. At defendant’s sentencing hearing, the trial court imposed the upper term on defendant’s conviction for manufacturing methamphetamine based on his “horrible prior record, including a prior manufacturing conviction.” Defendant’s adult criminal record, which was set forth in the probation report, included the following convictions: a 1982 burglary conviction a 1989 Oregon; conviction for conspiracy to manufacture a controlled substance; a 1992 misdemeanor conviction for evading a peace officer; a 1996 felony conviction for possessing a controlled substance; a 1996 conviction for transportation or sale of a controlled substance; a 1996 conviction for willfully failing to appear on a felony charge; and convictions in 2000 for violating a court order and felony evading of a peace officer.
As already noted, the fact of a prior conviction can be considered as a factor in aggravation by the trial court without a jury finding. Such was the case here. Defendant’s criminal record reflects that he began committing crimes at the age of 18 and continued to regularly break the law for the next 24 years, up until the time of the current offenses. The trial court’s reference to this scenario as a “horrible prior record” was merely another way of stating that defendant’s prior convictions were numerous. The trial court was entitled to rely on this factor without a jury finding.
A judge’s statement of factors regarding a sentencing choice “need not be in the language of these rules.” (Cal. Rules of Court, rule 4.406(a).)
Defendant contends the trial court’s reliance on his prior record to impose an upper term was unauthorized because it fell outside the “‘narrow exception’” envisioned by the Supreme Court for recidivist factors. He is incorrect.
Numerous courts have refused to impart the narrow interpretation urged by defendant of the language in Apprendi concerning prior convictions. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222, and cases cited therein.) As the Supreme Court explained in Apprendi, prior convictions are excluded from the jury trial requirement for increased sentences because a prior conviction “‘“does not relate to the commission of the [current] offense”’” and because “‘recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Apprendi v. New Jersey, supra, 530 U.S. at p. 488 [147 L.Ed.2d at p. 454].) Moreover, a defendant is afforded substantial procedural safeguards, such as the right to a jury trial and a beyond-a-reasonable-doubt standard of proof, at the time that the prior conviction occurs. (Ibid.)
It is difficult to conceive of a circumstance more related to recidivist conduct than defendant’s “horrible prior record.” The trial court’s reliance thereon in imposing the upper term was not improper.
DISPOSITION
The judgment is affirmed.
I concur: BUTZ , J.
HULL, J.
I concur in the result and write separately to explain the reasons why.
In this matter, the trial judge declared the principal term to be that term imposed for a violation of Health and Safety Code section 11379.6. He explained his decision to assess the upper term of imprisonment for that violation: “I will select the aggravated term based on [defendant’s] horrible prior record, including a prior manufacturing conviction.” The judge said nothing more on the subject of the upper term. I note also that he did not make reference to defendant’s probation report.
As the majority notes, defendant now contends the trial court erred in adjudicating the upper term sentence by virtue of the United State Supreme Court’s holding in Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham).
There are a number of critical Cunningham issues that are, as yet, undecided in California’s courts. This record raises many of them.
There is, for example, the question whether one aggravating fact, properly considered both constitutionally and under California sentencing law, is sufficient to impose the upper term of imprisonment. One may argue that one aggravating fact is sufficient because in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the high court held that “[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.” (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.)
Thus, once the trial court properly finds one fact that, under state law, increases the maximum prescribed statutory penalty (in California, increases it to the upper term of imprisonment), other facts upon which the court then relies do not increase the prescribed statutory maximum as it then stands. To use the language of Apprendi, the judge is now simply using facts to determine the proper sentence within the statutory limits in the individual case. (Apprendi, supra, 530 U.S. at p. 562 [147 L.Ed.2d at p. 499].) As a constitutional matter, the one fact must be the fact of a prior conviction, or a fact or facts either admitted by the defendant or proved to a jury beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].)
On the other hand, it may easily be argued that, unless the trial judge makes a clear record, an appellate court cannot determine whether the judge relied only on a fact or facts properly considered to increase the maximum term or, given a combination of facts, some of which were considered appropriately by the trial judge and some of which were not, the trial judge relied on facts to increase the maximum term that the trial judge could not consider under Cunningham. And, in the latter event, must the matter be returned to the trial court for further consideration or must the matter be remanded with an order to reduce the sentence to the mid-term? Does a remand ordering the mid-term depend on whether the facts in a given case are those that can, as a matter of law or practicality, be determined by a jury in the first place?
Moreover, while the fact used to increase the maximum punishment must, as a matter of constitutional law, be either the fact of a prior conviction or convictions or one admitted by the defendant or one found true by the jury, it must also be one that increases the maximum punishment under California law.
Thus, aggravating facts relating to the crime or the criminal are set forth in the California Rules of Court, rule 4.421 (further references to rules are to the California Rules of Court). Without repeating the entire rule, that portion of the rule that relates to prior convictions is rule 4.421(b)(2), which says that one aggravating factor that may be considered is that the defendant has “prior convictions as an adult or sustained petitions in juvenile delinquency proceedings [that] are numerous or of increasing seriousness.” (Rule 4.421(b)(2).) Therefore, while the court may, as a matter of constitutional law, utilize the fact of a prior conviction or convictions in increasing the statutory maximum without an admission from the defendant or the finding of a jury, to reach the upper term, the trial court, as a matter of California law, must limit itself to those factors set forth in rule 4.421.
And therein lies a difficulty when it comes to prior convictions. The fact of a prior conviction alone is not enough unless those convictions are numerous or of increasing seriousness. One can credibly argue that “numerous” and “of increasing seriousness” would, under some circumstances, be factual findings in themselves that are beyond the mere fact of a prior conviction. And if that is so, is a jury able to decide in some instances how many convictions are enough to make them numerous or whether they are of increasing seriousness, lacking as jurors do a base of comparison with other criminal cases? Are two convictions “numerous” within the meaning of the law? Is a conviction today of assault with great bodily injury consisting of a broken nose more serious than a conviction last year for possession of cocaine base for sale?
Then there is the matter of harmless error analysis. Most would agree that Cunningham error may be considered error which is harmless beyond a reasonable doubt, as I will note below. But where does the appellate court look in determining the harmlessness of the error? If the trial judge considers one or two facts that the judge may appropriately take into account and others that the judge cannot consider as a matter of constitutional law, does the appellate court ask whether the trial judge would have assessed the upper term based on the facts appropriately considered and decide, therefore, the error is harmless? Or does, or may, the appellate court find the error harmless because any reasonable jury would have found the fact or facts the judge relied on beyond a reasonable doubt had the matter been submitted to them?
Hopefully, our state high court will answer some of these questions when it decides cases it now has before it that raise these issues. (See, e.g., People v. Towne (Shawn) (Feb. 7, 2007, S125677) ___ Cal.4th ___; People v. Sandoval (Aida) (Feb. 7, 2007, S148917) ___ Cal.4th ___; People v. Black (Kevin Michael) (Feb. 21, 2007, S126182) ___ Cal.4th ___.)
In the matter before us, the trial court relied on defendant’s “horrible” prior record which included a prior conviction for the manufacture of a controlled substance. We might, generously, equate the trial court’s reference to defendant’s “horrible” prior record to a finding of “numerous” prior convictions within the meaning of rule 4.421. And, assuming the question of numerosity is the judge’s call, we might affirm on that basis. But we need not be so generous on this record in affirming this judgment.
We know that Cunningham error is not structural, but is, instead subject to a harmless error beyond a reasonable doubt standard of review. (Washington v. Recuenco (2006) 548 U.S. [165 L.Ed.2d 466].) In this matter, the probation report reflects that defendant has been convicted of a criminal offense on at least nine prior occasions none of which he disputed at the time of sentencing. In 1982, he was convicted of burglary in violation of Penal Code section 459. In 1987, he was convicted of possession of a controlled substance in violation of Health and Safety Code section 11377. In 1989, he was convicted in Oregon of “criminal conspiracy to manufacture a controlled substance,” a felony. In 1992, he was convicted of attempting to evade a police officer while driving recklessly in violation of Vehicle Code section 2800.2, a misdemeanor. In 1996, he was again convicted of possession of a controlled substance in violation of Health and Safety Code section 11377, a felony. Also in 1996, he was convicted of transporting, importing into the state, selling, furnishing, administering or giving away a controlled substance, or offering or attempting to do so in violation of Health and Safety Code section 11379, subdivision (a), a felony. Also in 1996, he was convicted of willfully failing to appear in violation of Penal Code section 1320.5, a felony. In 2000, he was convicted of willful disobedience of a court order in violation of Penal Code section 166 subdivision (a)(4), a misdemeanor. Also in 2000, he was convicted of attempting to evade a police officer while driving recklessly in violation of Vehicle Code section 2800.2, a felony. And, of course, he was in this proceeding convicted in 2006 of manufacture of a controlled substance in violation of Health and Safety Code section 11379.6 subdivision (a) and endangering the health of a child in violation of Penal Code section 273a.
The Oxford English Dictionary defines “numerous” when used as an adjective for a plural noun as “many, great in number.” (Oxford English Dict. (2007) [as of Jun. 21, 2007] “numerous,” 3.a.) Given the convictions I have set forth above, I am convinced beyond a reasonable doubt that, had the question been submitted to the jury, it too would have found defendant’s convictions to be numerous within the meaning of rule 4.421(b)(2), and thus an aggravating circumstance that increased the statutory maximum punishment in this matter to the upper as imposed by the trial judge. On that basis, I agree the judgment should be affirmed.