Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge. Super. Ct. No. 05CM5115 & 06CM0657
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Harris, Acting P.J., Hill, J. and Kane, J.
OPINION
STATEMENT OF THE CASE
On December 29, 2005, the Kings County District Attorney filed information No. 05CM5115 in superior court charging appellant Maurice Antonio Williams as follows: count I—unlawful possession of methamphetamine for sale (Health & Saf. Code, § 11378); and count II—misdemeanor unlawful possession of not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). The district attorney specially alleged appellant had sustained a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
On January 3, 2006, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On March 17, 2006, the district attorney filed information No. 06CM0657 in superior court charging appellant with unlawful possession of methamphetamine while in the Kings County Jail (Pen. Code, § 4573.6), with service of a prior prison term (Pen. Code, § 667.5, subd. (b)), and a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On March 20, 2006, appellant was arraigned on information No. 06CM0657, pleaded not guilty to the substantive count, and denied the special allegations. On that same date, the court granted a motion to consolidate the two criminal cases.
On May 15, 2006, jury trial commenced. On the same date, counsel stipulated that count I in case 06CM0657 could be renumbered as count III for purposes of trial and the court amended the information by interlineation to designate the Penal Code section 4673.5 charge as to count III. The court also granted a defense request to bifurcate trial of the special allegations set forth in both informations.
On May 16, 2006, the court, sitting without a jury, conducted a bifurcated trial and appellant admitted the truth of the special allegations set forth in both cases. On the same date, the jury returned verdicts finding appellant guilty as charged of counts II and III and guilty of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) a lesser included offense of that charged in count I.
On June 20, 2006, the court denied appellant probation and sentenced him to a total term of 10 years four months in state prison. The court imposed a doubled upper term of eight years on count III, a consecutive term of 16 months (one-third of the middle term) on count I, and a consecutive one-year term for the prior prison term allegation (Pen. Code, § 667.5, subd. (b)). The court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45), and awarded 175 days of custody credits. The court imposed a $100 fine on count II. The court also ordered appellant to register as a controlled substance offender (Health & Saf. Code, § 11590), and to provide bodily fluid samples and prints for DNA profiling (Pen. Code, § 296, subd. (a)(1)).
On November 13, 2006, appellant filed a writ of habeas corpus with this court (No. F051622) requesting leave to file a late notice of appeal. On December 12, 2006, this court filed an order granting the petition for writ and directed the clerk of the superior court to treat the notice as timely filed.
On January 8, 2007, appellant filed a notice of appeal.
STATEMENT OF FACTS
Counts I and II (information No. 05CM5115)
On November 9, 2006, officers from several law enforcement agencies executed a search warrant at the two-bedroom home appellant shared with his grandfather in Hanford. Hanford Police Investigator Richard Pontecorvo found nine baggies in the pocket of a black jacket. The jacket was located in the closet of appellant’s bedroom. Pontecorvo also found a small quantity of marijuana hidden inside an RC Cola can located on the shelf in the same closet. Pontecorvo also located a wallet in a pocket of a pair of pants in the same bedroom. The wallet contained appellant’s identification and approximately $1,380 in cash. Senior Criminalist Steven Patton of the California Department of Justice Regional Crime Laboratory in Fresno randomly selected one of the nine baggies for testing. The testing revealed the bag contained .44 grams of a substance containing methamphetamine. California Highway Patrol Officer Scott Goddard, a member of the Kings County Narcotics Task Force, concluded appellant possessed the methamphetamine for purpose of sale. Goddard based his conclusion on the packaging of the methamphetamine in various sizes and the currency in appellant’s wallet.
Count III (information No. 06CM0657)
On February 25, 2006, appellant had been in custody at the Kings County Jail for several weeks. On that date, jail administrators ordered a search of appellant and his cellmates as well as the cell itself. During a strip search of appellant, Alexander Valdez, a detention deputy for the Kings County Sheriff’s Department, found a package containing 2.55 grams of substances containing methamphetamine hidden “right in front of his anus.”
DISCUSSION
Imposition of an Upper Term of Imprisonment on Count III
Appellant contends the trial court violated his Sixth and Fourteenth Amendment rights to a jury trial and due process by imposing an upper term of imprisonment on count III.
On June 20, 2006, the court conducted a sentencing hearing and stated in relevant part:
“The defendant was convicted in a jury trial of violation of Section 11377, possession of methamphetamine with a strike prior, and there was also a finding of a prior prison commitment under section 667.5(b) and a conviction of a charge of possessing marijuana less than an ounce. And in Case 06CM0657 there was a conviction for possession of methamphetamine in a jail with a strike prior and a prison prior.
“I’ve considered the criteria under Rule 4.413. It would appear that the defendant is excluded from consideration … for a grant of probation by virtue of the strike prior. I am aware of the availability of relief under Penal Code Section 1385 and the People versus Romero decision. There do not appear to be appropriate circumstances to invoke Penal Code Section 1385 in this case, and the Court would decline to do so.
“With regard to -- further regard to probation choices, even if the defendant were eligible for a grant of probation, he has an extensive record with multiple failures to appear and multiple violations of probation and parole, and a clear criminal pattern of behavior that would make it clear that he is not a suitable candidate for a grant of probation.
“With regard to sentencing choices, I’ve considered the -- and first in regard to Case 06CM0657, which I will treat as the -- propose to treat as the principal term in this case, the Court would note that the crime in that case was relatively sophisticated, and the Court also notes that … the defendant has a long history of criminality, including violent crimes and a history of probation and parole violations.
“There are no circumstances in mitigation of any consequence. An upper term is being recommended, and it would be the Court’s inclination to follow that recommendation and order the upper term of four years doubled by virtue of the strike prior to eight years, and the Court would also add an additional one year for the prison prior.
“With regard to sentencing in Case 05CM5115, the Court sees that case as being separate and distinct in time, place and circumstance and appropriate for consecutive sentencing. This would add a term of one year, four months, which is one-third of the mid term. And the 667.5 enhancement would be imposed, but stayed as to that case.
“On the misdemeanor in Count 2 of Case 05CM5115, the Court would impose … a $100 fine. There is no … penal sentence possible for that charge.”
After hearing the brief comments of counsel, the court ordered:
“For the reasons previously stated, in Case No. 06CM0657 the Court is going to deny probation and … order that the defendant be committed to an eight year term for violation of Section 4573.6 of the Penal Code with a strike prior enhancement, and an additional one year will be ordered pursuant to Section 667.5(b) for a prison prior, a total of nine years.
“In Case No. 05CM5115, on the charge of possessing methamphetamine, 11377(a) of the Health and Safety Code, the Court will order a term of one year four months, which is one-third of the -- there was a strike prior alleged as to this offense also, so the mid term would be four years and one-third of that would be a year and four months. That would be ordered to be served consecutively to the term imposed in Case 06CM0657. I’m also going to impose an enhancement under Section 667.5(b) of the Penal Code, but that will be stayed as to this offense or this count.”
In Blakely v. Washington (2004)542 U.S. 296 (Blakely), the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): “‘Other 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.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (United States v. Booker (2005) 543 U.S. 220, 244.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on this state’s Determinate Sentencing Law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the court held California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts—other than the fact of a prior conviction—found by the court rather than by a jury beyond a reasonable doubt.
“As this Court’s decisions instruct, 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. Apprendi v. New Jersey, 530 U.S. 466 … (2000); Ring v. Arizona, 536 U.S. 584 … (2002); Blakely v. Washington, 542 U.S. 296 … (2004); United States v. Booker, 543 U.S. 220 … (2005). ‘[T]he relevant “statutory maximum,”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ Blakely, 542 U.S., at 303-304 … (emphasis in original).... [¶] ... [¶]
“… 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 [Determinate Sentencing Law] 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.” (Cunningham, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 860, 871], fn. omitted.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the Supreme Court held in response to Cunningham:
“[A]s 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 factfinding 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. [¶] ... [¶]
“Accordingly, so 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....
“... 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.’ [¶] ... [¶]
“... 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. (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) ‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, 523 U.S. at p. 243.)” (Black II, supra, 41 Cal.4th at pp. 812-813, 818, fn. omitted.)
The Black II court specifically concluded that a defendant’s criminal history is an aggravating circumstance that independently satisfies Sixth Amendment requirements and renders the defendant eligible for the upper term of imprisonment. (Black II, supra, 41 Cal.4th at pp. 805-806.) The decisions of the California Supreme Court are binding upon and must be followed by all the state courts of California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In view of the controlling authority of Black II, the trial court in the instant case did not err by citing appellant’s “criminal history” as a circumstance in aggravating in support of imposition of the upper term. Appellant’s claim of sentencing error must be rejected.
DISPOSITION
The judgment is affirmed.