Opinion
A115773
6-24-2008
THE PEOPLE, Plaintiff and Respondent, v. RASHEED JAMAL, Defendant and Appellant.
Not to be Published
I. INTRODUCTION
After a jury trial, appellant was convicted of three of six counts charged in an information, namely, possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), carrying a loaded firearm in public after having a prior violation (§ 12031, subd. (a)(1)), and assault with a deadly weapon (§ 245, subd. (a)(2)). The jury also found true an enhancement charging personal use of a firearm (§ 12022.5, subd. (a)). Later, the court found that appellant had suffered two prior drug-related felony convictions in Alameda County.
All statutory references are to the Penal Code.
The court sentenced appellant to the upper term of four years on the assault with a deadly weapon count (count 6) plus the upper term of 10 years for the personal use of a firearm enhancement charged as to that count. Pursuant to section 654, it stayed the sentence on the remaining two counts on which appellant was found guilty. Appellant thus received a total prison sentence of 14 years. Appellant appeals from that sentence, claiming it is inconsistent with the law as set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We disagree and hence affirm.
Appellants opening brief (he filed no reply brief) asserts that this sentence was imposed for the guilty verdict and true finding regarding count 4 of the amended indictment. This is incorrect; the sentence the court pronounced derived from appellants conviction on count 6 (§ 245, subd. (a)(2)) and the jurys true finding of the enhancement charged as to that count.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal relates solely to the sentence imposed by the court, we will only briefly summarize the facts underlying appellants conviction.
In 2005, and apparently for some time before, appellant was romantically involved with one Lenora McClure. She, however, was apparently also involved with another man, and her brother, Leonard Taylor, tried to help her out of her dilemma by telling appellant to leave his sister alone. In November 2005, appellant told Taylor he wanted to retrieve some of his belongings from McClures house. Taylor arranged with his sister to get some of appellants belongings back to him, but not enough to satisfy appellant, who allegedly said that McClure would be well advised to watch her car. Taylor then went to appellants house and left a message with others there that appellant should stop threatening his sister.
This led to appellant going to McClures house with a gun and banging on the door. Later the same evening, McClures bedroom window was broken, and neighbors reported seeing two or three men both in McClures yard and hiding behind a truck nearby, apparently with guns. Taylor got into his truck and started it up near the pickup truck behind which some men were hiding. As he did so, two men, one of whom he recognized as appellant, opened fire on him and kept firing even after his truck had stalled. Taylors trucks side window was shattered, the truck had many holes in it, as did Taylors clothing. One bullet had grazed his chest, but he was otherwise uninjured.
The police looked for appellant a week or so later at his place of employment, but did not find him. Later that day, however, he surrendered to them.
An amended information containing six counts and several enhancement allegations was filed on June 19, 2006. In addition to the three counts on which appellant was convicted, he was also charged with attempted murder of Taylor (§§ 187, subd. (a) & 664), trespass by threat upon McClure (§ 601, subd. (a)), and uttering criminal threats to McClure (§ 422). After a 15-day jury trial, the jury hung on these three counts, resulting in a mistrial as to them. The prosecution later dismissed those charges. However, as noted above, the jury did convict appellant on the other three counts (counts 4 through 6 in the amended information) and also found true a charged enhancement alleging appellants personal use of a firearm in connection with the count 6 charges. (§ 12022.5, subd. (a).)
On July 27, 2006, a court trial was held on the prior conviction allegations. The court found the allegations true with respect to two prior drug-related convictions of appellant in Alameda County, but found a third allegation involving a similar offense in San Francisco not proven.
On September 8, 2006, the court sentenced appellant as noted above. Appellant filed a timely notice of appeal.
III. DISCUSSION
The trial courts selection of the two consecutive upper term sentences imposed on appellant (one for his conviction on count 6, charging assault with a deadly weapon, and the other for the enhancement charging personal use of a firearm) came before the United States Supreme Courts decision in Cunningham and our Supreme Courts reaction to that decision in People v. Black (2007) 41 Cal.4th 799 (Black). In briefest summary, those cases require that a decision to impose an upper term must generally be based on determinations made by a jury under the beyond-a-reasonable doubt standard of proof, unless the upper term choices are based on evidence before the court of the recidivism of the defendant being sentenced.
In these circumstances, and as the trial court noted, consecutive terms are mandated by section 12022.5, subdivision (a).
In Black, our Supreme Court addressed the situation where the trial court relies on more than one aggravating circumstance in imposing the upper term, some of which arguably implicate the defendants right to a jury trial under Cunningham and others of which do not. The court concluded "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 [v. New Jersey (2000) 530 U.S. 466 (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 defendants right to jury trial." (Black, supra, 41 Cal.4th at p. 812.)
The court in Black also concluded that a defendants prior criminal history is an aggravating circumstance which typically should be sufficient to justify imposition of the upper term without implicating the defendants right to jury trial. The Black court explained that "the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] `[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.]" (Black, supra, 41 Cal.4th at p. 818.) Just like the defendant here, the defendant in Black contended "he was entitled to a jury trial on the aggravating circumstance of his prior criminal history because, even if the trial court properly may decide whether a defendant has suffered a prior conviction, a jury must determine whether such convictions are numerous . . . . Defendant, however, reads the `prior conviction exception too narrowly. . . . [T]he Almendarez-Torres [v. United States (1998) 523 U.S. 224] exception . . . include[s] 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." (Black, supra, 41 Cal.4th at p. 819.)
Our Supreme Court concluded in Black that determining "whether a defendant has suffered prior convictions, and whether those convictions are `numerous . . . (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged." (Black, supra, 41 Cal.4th at pp. 819-820.) According to the court, where "[t]he probation report reflected that defendant had been convicted of three misdemeanors . . . and that he also had suffered two felony convictions," such convictions were "numerous" for purposes of rule 4.421(b)(2). (Id. at p. 818.)
In the present case, after the trial court announced its sentence, trial defense counsel objected to the trial court "giving my client the aggravated term on both the underlying charge [under section] 245 and the aggravated charge. I think that . . . what this amounts to is dual use of the facts . . . [and] that your sentence violates Blakely v. Washington [542 U.S. 296 (Blakely)] and some of the factors that you relied on were not proven to the jury beyond a reasonable doubt." This argument is repeated in appellants brief to this court, where his appellate counsel urges that the trial court "violated Apprendi/Blakely/Cunningham by imposing upper terms based on its own findings of aggravatng facts not admitted or found true by the jury."
This argument is incorrect. In the first place, one of the several aggravating factors used by the court in sentencing appellant to both the upper term on count 6 and the upper term on the section 12022.5, subdivision (a), enhancement was determined by the jury under, of course, its beyond-a-reasonable-doubt standard. This is made clear by the jurys specific finding that appellant "DID. . . personally use a firearm within the meaning of" that section.
Although it found there were several mitigating factors in appellants favor (e.g., his "self-surrender"), the trial court twice noted that the aggravating factors substantially outweighed the mitigating factors.
Second, and consistent with the principle confirmed the following year by our Supreme Court in Black, the trial court identified three separate factors involving the recidivism of appellant as bases for its selection of the two upper terms it did. Those factors were: (1) "[T]he defendants prior convictions as an adult are numerous, and they are increasingly serious," (2) regarding California Rule of Court, rule 4.421(b)(4), appellant was "on probation when the crime was committed," and (3) regarding California Rules of Court, rule 4.421(b)(5), appellant "continued to offend while on probation" and, therefore (albeit implicitly) his performance on probation was "unsatisfactory."
The probation report before the court noted that appellant had been convicted of six prior felonies, two of them in Alameda County, and had also been committed to the California Youth Authority once, and returned to it for a parole violation. At the commencement of the sentencing hearing, the trial court specifically stated that it had reviewed that report. Appellants trial counsel did not contest the accuracy of either that report or the courts later statement regarding appellants "numerous" prior convictions.
Even before Black, one of our sister courts ruled that two "recidivist factors . . . alone—[the defendants] prior prison term and his numerous prior adult convictions, each established by means that satisfy the governing Sixth Amendment authorities—`exposed [him] to an upper term sentence . . . on the assault charge and the related firearm enhancement." (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515-1516, fn. omitted (Velasquez).)
In so stating, the Velasquez court noted that "[t]he same fact cannot be used to impose an upper term . . . for an enhancement. [Citation.] Accordingly, both recidivism factors are necessary to support the two upper term sentences imposed in this case." (Velasquez, supra, 152 Cal.App.4th at p. 1516, fn. 12.) The same principle applies here.
Here, the trial court found there were three separate and distinct "recidivist factors" justifying the imposition of the upper terms. And, as noted above, one of those upper terms, the personal use of a firearm enhancement attached to count 6, was also found to be true by the jury. Thus, and applying the rule of Black that one valid aggravating factor is sufficient to justify the upper term, the trial court did not err in imposing the two consecutive upper terms it did.
This conclusion applies even if the two probation-related factors mentioned by the court are, perhaps more realistically, conflated into one, i.e., being on probation when the crime was committed. (Cal. Rules of Court, rule 4.421(b)(4).)
IV. DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J.
Richman, J.