Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia Rayvis, Judge. Los Angeles County Super. Ct. No. VA090398
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Kenneth Moore appeals from the judgment entered following a jury trial that resulted in his conviction for grand theft of personal property. Moore was sentenced to a prison term of ten years.
Moore’s sole contention on appeal is that the trial court violated his Sixth Amendment and due process rights to have a jury determine the facts upon which the court relied to impose an upper term sentence (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]). The People assert that the trial court erred by staying, rather than striking, two Penal Code section 667.5, subdivision (b) prison term enhancements. We reverse the portion of the judgment erroneously staying the two section 667.5(b) enhancements, and remand to the trial court so that it may determine whether to strike or impose them. In all other respects, we affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On July 28, 2005, Moore and a woman visited the electronics department of a Lakewood Target store. The woman placed two portable DVD players, valued at approximately $299 each, in their shopping cart. The couple pushed the cart to the accessories department. Moore removed the DVD players from their boxes and placed them inside two large J.C. Penney bags. The couple left the store without paying for the DVD players.
2. Procedure.
Trial was by jury. Moore was convicted of grand theft of personal property (§ 487, subd. (a)). After Moore waived his right to a jury trial on prior conviction allegations, the trial court found Moore had suffered nine prior convictions, and had served nine prior prison terms within the meaning of section 667.5, subdivision (b). Moore was sentenced to a term of 10 years in prison. The trial court further imposed a restitution fine, a suspended parole revocation fine, and a court security fee. Moore appeals.
Ten section 667.5, subdivision (b) allegations were alleged in the information. The trial court struck one section 667.5, subdivision (b) allegation after the parties agreed it “should not have been alleged.”
DISCUSSION
1. Imposition of the upper term.
a. Additional facts.
At sentencing, the trial court imposed the upper term of three years. It explained, “[The] court selects the high term for the following reasons: the manner in which the crime was carried out indicates quite a bit of planning. The defendant’s prior convictions as an adult are numerous. The defendant has served several prior prison terms. And he was on probation or parole at the time this crime was committed.” Based on its finding that Moore had served nine prior prison terms within the meaning of section 667.5, subdivision (b), the trial court imposed seven one-year enhancements for seven of the nine prison priors. It ordered the two remaining one-year prison term enhancements stayed.
b. Discussion.
Moore contends that imposition of the upper term violated his due process and jury trial rights, as interpreted in Blakely v. Washington, supra, 542 U.S. 296 and Cunningham v. California, supra, 127 S.Ct. 856. We agree with Moore that the trial court relied on a mixture of at least one properly considered “recidivist factor” and at least one factor which required a jury finding. We conclude, however, that the trial court’s error was harmless beyond a reasonable doubt.
(i) Waiver.
Initially, the People contend Moore forfeited his right to assert Blakely error because he did not object to imposition of the upper term sentence on constitutional grounds below. However, when the sentencing hearing transpired, the California Supreme Court had already held in People v. Black (2005) 35 Cal.4th 1238, 1244, overruled by Cunningham v. California, supra, 127 S.Ct. 856, 868-871, vacated sub nom. Black v. California (2007) __U.S. __ [167 L.Ed.2d 36, 127 S.Ct. 1210], that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term did not implicate a defendant’s Sixth Amendment right to a jury trial. Any objection on Blakely grounds would, therefore, have been futile. Accordingly, Moore is not barred from challenging his sentence under Blakely and Cunningham. (People v. Hill (1998) 17 Cal.4th 800, 820 [objection is not required to preserve issue for review where objection would have been futile].)
Given our conclusion that Moore’s claim is not waived, we need not reach the question of whether defense counsel was ineffective for failing to object on Blakely grounds.
(ii) Applicable legal principles.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 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 must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) Cunningham explained that the federal constitutional 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.” (Cunningham v. California, supra, 127 S.Ct. at p. 860; People v. Calhoun (2007) 40 Cal.4th 398, 406.) The statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. (Cunningham, supra, at p. 865; Blakely v. Washington, supra, 542 U.S. at pp. 301-305.)
(iii) Application here.
In the instant case, the trial court found four aggravating factors: (1) Moore’s prior convictions were numerous; (2) he had served prior prison terms; (3) the manner of commission of the crime indicated planning; and (4) he was on probation or parole at the time of commission of the instant offense. (See Cal. Rules of Court, rule 4.421, (b)(2), (3), & (4).)
The trial court’s reliance on the facts Moore had suffered prior convictions and had served prior prison terms was proper. Blakely and Cunningham do not prohibit a trial court from relying on the fact that a defendant has suffered prior convictions as an aggravating factor. (See Cunningham v. California, supra, 127 S.Ct. at p. 860; People v. McGee (2006) 38 Cal.4th 682, 699; People v. Burch (2007) 148 Cal.App.4th 862, 873.) “The use of prior convictions as factors for a sentencing departure from the statutory maximum (middle term) is constitutionally permissible because it falls within the Supreme Court’s bright-line exception” stated in Apprendi v. New Jersey, supra, 530 U.S. 466. (People v. Burch, supra, at p. 873.) “It is an insignificant step from ‘the fact of a prior conviction’ to a conclusion that defendant’s prior convictions made him a criminal recidivist.” (People v. Taulton (2005) 129 Cal.App.4th 1218, 1226.) Further, Moore waived his right to a jury trial on the section 667.5, subdivision (b) prior prison term allegations. Therefore, the trial court’s reliance on the first and second factors was proper and did not violate Moore’s constitutional rights.
The third aggravating factor – that the crime involved planning – did not fall within the recidivism exception to the Blakely/Cunningham rule, and was neither supported by an express jury finding nor admitted by the defendant. The trial court’s reliance on this factor, therefore, was improper.
Our Supreme Court is currently considering whether various circumstances related to recidivism -- including, inter alia, the fact the defendant was on parole at the time of commission of the crimes -- may be relied upon as an aggravating factor in the absence of a jury finding. (People v. Towne (May 17, 2004, B166312), review granted July 14, 2004, S125677.) For purposes of the instant appeal, we assume arguendo that a defendant’s parole status must be tried to a jury and found true beyond a reasonable doubt before it can be used to impose the upper term.
We therefore consider whether the trial court’s use of the planning and parole factors was prejudicial. Blakely error is not structural error, but instead is reviewed under the Chapman harmless beyond a reasonable doubt standard. (Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546, 2552-2553]; Chapman v. California (1967) 386 U.S. 18.)
It is clear beyond a reasonable doubt that the jury would have found the crime involved planning. (See generally Cal. Rules of Court, rule 4.421, (a)(8) [the “manner in which the crime was carried out indicates planning” may be considered as a circumstance in aggravation].) Moore and his companion picked up the DVD players in the electronics department, and then moved to the accessories department. There, Moore removed the DVD players from their packaging. He then placed the DVD players into empty J.C. Penney’s bags which were already in the shopping cart. These activities were all captured on a Target surveillance tape, which was shown to the jury. The only reasonable inferences from Moore’s behavior are that he and his companion planned to complete the theft before entering the store and brought empty J.C. Penney bags with them for that purpose. Moore’s removal of the packaging and placement of the DVD players in the J.C. Penney’s bags could not have been undertaken for any purpose except to escape detection. In short, the jury, having credited the People’s evidence of the crime, would certainly have concluded the manner in which the crime was committed indicated significant planning. Indeed, at sentencing Moore’s counsel appropriately conceded that “in view of the fact there were two and two shopping bags,” it was difficult to contest the planning factor. Thus, the trial court’s reliance on this factor was harmless beyond a reasonable doubt. (See generally Washington v. Recuenco, supra, 126 S.Ct. at pp. 2551-2553.)
The People correctly point out that a single aggravating circumstance is enough to support imposition of an upper term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728-729; People v. Burch, supra, 148 Cal.App.4th at p. 873.) Under California Rules of Court, rule 4.420(c), “a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.” As noted, the trial court imposed one-year enhancements for seven of the nine section 667.5, subdivision (b) allegations. The trial court could not properly have relied upon those seven prior convictions and prison terms as aggravating factors. However, assuming the trial court strikes the two remaining section 667.5, subdivision (b) enhancements on remand (see below), use of those two prior convictions and prison terms as circumstances in aggravation was proper. The trial court did not find any circumstances in mitigation. Given the absence of mitigating factors and the existence of two aggravating factors, we conclude it is clear beyond a reasonable doubt that the trial court would have imposed the upper term even if it had excluded consideration of Moore’s parole status and the planning factor. Accordingly, Moore’s Blakely claim lacks merit.
2. Section 667.5(b) enhancements are not subject to stay.
As noted, the trial court imposed seven section 667.5(b) enhancements. It ordered sentence on the remaining two section 667.5, subdivision (b) enhancements stayed. As the People point out, a section 667.5(b) enhancement may be stricken, but cannot be stayed. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. McCray (2006) 144 Cal.App.4th 258, 267.) Therefore, on remand the trial court shall either impose the enhancements or strike them in accordance with the dictates of Penal Code section 1385. (People v. McCray, supra, at p. 267.) We express no opinion as to how the trial court should exercise its discretion in sentencing defendant. However, as we have set forth above, the trial court may not use the fact of a prior conviction and prison sentence as aggravating factors if it also imposes a section 667.5, subdivision (b) enhancement based on the same facts. (See § 1170, subd. (b); Cunningham v. California, supra, 127 S.Ct. at p. 863 [observing that under California law, “[a] fact underlying an enhancement cannot do double duty; it cannot be used to impose an upper term sentence and, on top of that, an enhanced term.”].) Our analysis of the Blakely/Cunningham issue, supra, is premised on the assumption that the trial court has not imposed sentence on two of the section 667.5(b) enhancements. Thus, should the trial court impose the remaining two section 667.5, subdivision (b) enhancements on remand, it must also resentence Moore in accord with the principles set forth in Blakely and Cunningham.
DISPOSITION
That portion of the judgment staying imposition of punishment for the enhancements under Penal Code section 667.5, subdivision (b), is reversed. The matter is remanded for further proceedings consistent with the opinions expressed herein. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.