Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. LA049362
THE COURT:Michael Jerome Thomas, also known as James Michael, Miguel Thomas, Tomos Eugene Thomsa, Lil Mike, Michael James Jay, Michael James and Thomas Eugene Thomas, appeals from a judgment entered upon his conviction by jury of one count of evading a police officer, a felony (Veh. Code, § 2800.2, subd. (a)), and two misdemeanor counts of hit and run driving (§ 20002, subd. (a)). The trial court found to be true the allegation that appellant had suffered one prior felony strike within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). After denying appellant’s Romero motion, the trial court sentenced him to an aggregate state prison term of six years, consisting of the upper term of three years for the section 2800.2, subdivision (a) violation, doubled as a second strike and concurrent six month county jail terms for the two misdemeanor convictions. It stayed the four 1-year prison term priors. The trial court did not state on the record the aggravating and mitigating factors it found in imposing the upper term sentence.
All further statutory references are to the Vehicle Code unless otherwise indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Appellant contends that the trial court erred (1) in failing to state on the record its findings in support of its imposition of the upper term sentence, and (2) in imposing more than the middle term because it could not do so in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
FACTUAL AND PROCEDURAL BACKGROUND
On June 10, 2005, appellant’s car was in his mechanic’s shop. When his mechanic would not release the car to him because it had a broken bracket on the power steering, appellant took the car of another customer. When uniformed police officers activated the red flashing lights and siren on their patrol car and pursued him, appellant failed to stop, ran numerous stop signs and red lights, drove on the wrong side of the road, and sped and weaved on the freeway. As he exited the freeway, appellant was involved in a collision. After the collision, he restarted his car and continued to evade officers, causing a second collision in which his car rolled over on its side. Appellant climbed out of the vehicle and continued to flee on foot, finally being apprehended.
After examination of the record, counsel filed an “Opening Brief” in which no issues were raised. On July 31, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response to that notice was received.
On February 7, 2007, we contacted counsel for the parties and requested supplemental briefing on the following questions: “1. Whether the trial court erred in failing to state on the record the aggravating and mitigating factors found in imposing the upper term; 2. Whether that omission was error, and, if so, whether it was prejudicial; 3. What is the appropriate remedy; and 4. What, if any, impact, does Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham) have on the foregoing.”
In response to our order, appellant filed a supplemental letter brief asserting that (1) the trial court erred in failing to state on the record the circumstances it found in support of its imposition of the upper term, (2) in light of Cunningham, the trial court could no longer impose more than the middle term, and, (3) the prior conviction exception to the requirement that aggravating factors be found by a jury beyond a reasonable doubt will not survive further United States Supreme Court scrutiny. Appellant requested that we impose the middle term or remand the matter to the trial court for resentencing.
Thereafter, respondent filed its letter brief, contending that this matter should be remanded for resentencing because the trial court exceeded its jurisdiction by staying, rather than striking or imposing, the four prior prison term enhancements. As a result, respondent did not address the issues we requested.
Appellant filed a reply letter brief, advising us that the trial court had corrected its sentencing order by striking the four prior prison term enhancements under section 667.5, subdivision (b).
Respondent therefore filed a surreply letter brief addressing the issues we ordered briefed. Respondent contends that appellant forfeited his claim that the trial court failed to state on the record its findings supporting imposition of the upper term by failing to raise that issue in the trial court, and if that claim was not forfeited, the error was harmless. If this claim was not waived or the error harmless, the matter should be remanded to the trial court so it can articulate its reasons for the upper term.
DISCUSSION
As previously stated, the trial court sentenced appellant to the upper term of three years for the section 2800.2, subdivision (a) violation, doubled as a second strike. In imposing the upper term, it failed to state on the record the aggravating and mitigating factors it found.
The probation report before the trial court indicated that appellant had a substantial criminal history and had been unsuccessful on parole. It recommended that he receive the upper term, listing as factors in aggravation that (1) his prior convictions as an adult and adjudications as a juvenile are numerous or of increasing seriousness, (2) he served prior prison terms, (3) his prior performance on probation and parole were unsatisfactory, and (4) he was on parole at the time the charged offense occurred.
The probation report indicated that as a minor appellant was adjudicated to have committed robbery and was sent to the California Youth Authority and subsequently violated parole. Several other juvenile petitions had been filed against appellant, but the probation officer was unable to determine their dispositions before preparing the report. As an adult, appellant was convicted (1) in or about 1988, of possession of a controlled substance where prisoners are kept, (2) in 1990, in three separate prosecutions, three incidents of possession of controlled substances for sale, subsequently violating parole, (3) in July 1992, of possession of a controlled substance, (4) in December 1994, of inflicting corporate injury on a spouse/cohabitant, parole subsequently revoked, (5) in October 1997, of taking a motor vehicle without consent, probation subsequently revoked, (6) in April 2000, of second degree burglary after being found to be mentally incompetent.
I. Failure to state reasons for upper term
Appellant contends that when imposing the upper term, the trial court erred in failing to state on the record the aggravating and mitigating factors. He argues that, as a result, he was subjected to the upper term for unknown factors in violation of his Fifth, Sixth and Fourteenth Amendment rights to a jury trial by proof beyond a reasonable doubt. Respondent contends that appellant waived this claim by failing to assert it in the trial court. We agree with respondent.
By failing to object at trial, appellant forfeited his claim that imposition of upper term for his conviction for evading a police officer was improper on the ground that the trial court failed to state on the record its reasons for imposing those terms. (People v. Scott (1994) 9 Cal.4th 331, 353 [“We conclude that the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices”]; see also People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511.)
II. Failure of jury to find aggravating factors beyond a reasonable doubt
Appellant contends that imposition of the upper term sentence deprived him of the right to a jury determination beyond a reasonable doubt of all facts necessary to increase his sentence beyond the statutory maximum, as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. He argues that because the trial court failed to state on the record its findings in support of the upper term sentence, “it is unknown whether the trial court went beyond the simple fact of a prior conviction when imposing the upper term,” thereby violating his Fifth, Sixth and Fourteenth Amendments rights to a jury determination beyond a reasonable doubt of those factors that increase his sentence beyond the statutory maximum and to due process.
We cannot conclude simply from the trial court’s failure to state on the record the circumstances in aggravation and mitigation that it improperly found factors that should have been found by a jury. That being said, the analysis in People v. Black (2007) 41 Cal.4th 799 (Black) obviates the need for such speculation and allows us to conclude that there is no constitutional violation here.
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is “the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant” must be determined by a jury and proved beyond a reasonable doubt. (Id. at p. 303). The high court recently made clear that “[i]n accord with Blakely . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 868].) In Cunningham, the United States Supreme Court held that California’s determinate sentencing law was unconstitutional to the extent that it authorized the trial court to impose an upper term sentence based on facts that were found by the court rather than a jury beyond a reasonable doubt. (Cunningham, supra, at p. __ [127 S.Ct. at p. 871].)
Following Cunningham, the California Supreme Court in Black reasoned 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, supra, 41 Cal.4th at p. 812.) “[I]f 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.’” (Id. at p. 813.) Citing federal circuit decisions stating that the prior conviction exception may be found using the preponderance of the evidence standard, Black also concluded that “[t]he high court never has suggested that the requirement of proof beyond a reasonable doubt could be severed from the right to jury trial for purposes of applying the [prior convictions exception].” (Id. at p. 820, fn. 9.)
“The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Black, supra, 41 Cal.4th at p. 818; Blakely, supra, 542 U.S. at pp. 301, 303.) This exception is not to be read too narrowly. (Black, supra, at p. 819.) The fact of a prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) This exception relates more broadly to the issue of “‘recidivism.’” (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222, cited with approval in People v. McGee (2006) 38 Cal.4th 682, 700-703; see also People v. Yim (2007) 152 Cal.App.4th 366 [post-Cunningham case; imposition of upper term sentence based on court’s finding of recidivism-related factors does not violate defendant’s Sixth Amendment right to jury trial].)
The issue of whether a trial court can constitutionally impose an upper term based on the fact that the defendant was on parole when the crime was committed, without a jury determination, is currently before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.
As discussed, in selecting the upper term here, the trial court did not articulate on the record its reasons for doing so. But the trial court found that appellant had a prior felony strike and multiple prior prison terms and the probation report indicated that appellant has an extensive criminal history. These factors fall squarely within the prior conviction/recidivism exception. Accordingly, the trial court found at least one “aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi.” (Black, supra, 41 Cal.4that p. 812.) Hence, although no reasons for the upper term were stated, appellant’s criminal history made him eligible for the upper term, and the trial court was free to consider other factors in imposing an upper term sentence. (See Black, supra, at pp. 819-820.)
III. Wende review
In addition to considering the above issues, we have also examined the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no other arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The judgment is affirmed.