People v. Emerson

• Decision Date: 18 November 2004
• Docket Number: No. C045613.,C045613.
• Citation: 21 Cal.Rptr.3d 134,124 Cal.App.4th 171
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Francis EMERSON, Defendant and Appellant.

21 Cal.Rptr.3d 134

124 Cal.App.4th 171

The PEOPLE, Plaintiff and Respondent, v. Robert Francis EMERSON, Defendant and Appellant.

No. C045613.

Court of Appeal, Third District.

November 18, 2004.

Certified for Partial Publication.^*

Review Granted February 23, 2005.

Review Dismissed and Cause Remanded September 7, 2005.

Richard J. Krech, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Jane N. Kirkland and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

HULL, J.

Defendant Robert Francis Emerson was arrested after driving erratically and failing field sobriety tests. He subsequently was convicted of driving under the influence of alcohol and driving on a suspended license.

On appeal, defendant contends that the court erred in imposing the upper term of three years on the principal offense of driving under the influence (DUI) with a prior DUI conviction in the previous 10 years. We disagree and affirm the judgment.

FACTS AND PROCEEDINGS

A jury found defendant guilty of driving under the influence (Veh.Code, §§ 23152, subd. (a), 23550.5 — count one), and driving with a blood-alcohol level in excess of .08 percent, with a prior felony DUI conviction (Veh.Code, §§ 23152, subd. (b), 23550.5 — count two).

Before trial, defendant pleaded no contest to two counts of misdemeanor driving on a suspended license arising from the same incident: for driving when his license had been suspended for a prior DUI (Veh. Code, § 14601.2, subd. (a) — count three) and driving when his license had been suspended or revoked for other reasons (Veh.Code, § 14601.1, subd. (a) — count four). Following the jury verdicts, defendant admitted allegations he suffered a prior prison term and a prior felony DUI conviction in 2000.

On parole at the time of these offenses defendant has an extensive criminal history. The probation report prepared prior to sentencing shows that, not only was his driver's license suspended or revoked on nine occasions for driving under the influence of alcohol or drugs between 1985 and 2003 (the instant offenses), but defendant was convicted in 1975 of grand theft; in 1976 of burglary and receiving stolen property; in 1977 of driving under the influence (a wet/reckless); in 1978 of theft; in 1979 of trespassing; in 1980 of possessing marijuana for sale; in 1992 of felony driving under the influence; twice in 2000 of felony driving under the influence.

The probation report recommended the court select count one as the principal offense, and that it impose the applicable upper term of three years (Pen.Code, § 18) in view of the aggravating circumstances that defendant "has a significant prior record of criminal conduct involving a pattern of driving under the influence of alcohol, as well as property-related offenses" (Cal. Rules of Court, rule 4.421(b)(2); further references to rules are to the California Rules of Court); has served three prior prison terms (rule 4.421(b)(3)); was on parole for felony driving under the influence when he committed the instant offenses (rule 4.421(b)(4)); and his prior performance on probation and/or parole "was unsatisfactory" (rule 4.421(b)(5)). No circumstances in mitigation were identified in the probation report.

At the sentencing hearing, defense counsel urged the court to impose the middle term, noting that "much of [defendant's] prior felony record is made up of DUI's, and to some extent that is already taken into account by virtue of the fact that he has been charged with a felony. If he didn't have that record, he would be charged with a misdemeanor. So to some extent, he's already been punished for that.... [¶] ... [¶] It may be tempting to look at the prior DUI's and say he deserves high term, but once again I believe that already is taken into the equation."

The court rejected counsel's argument, explaining: "[T]urn[ing] to the aggravating factors opposed to the mitigating factors as listed in the report at page 30[:][¶] It talks about facts relating to the defendant. [Defense counsel] points out that the prior convictions, many — well, some of them were listed as the basis for the felony DUI, although in reviewing the report I do note starting back in 1975 with grand theft, receiving stolen property, there were many other offenses there, many theft related. [¶] Also a possession of marijuana for sale offenses listed, 415's, various offenses. [¶] So with regard to those offenses, even if I were to exclude the DUI's, I would certainly find that the prior offenses and convictions are numerous."

Having found no applicable factors in mitigation the court selected count one as the principal offense, and imposed the upper term of three years. It also imposed a one-year enhancement for the 2000 prior prison term allegation admitted by defendant.

DISCUSSION

I^**

II Blakely Error

By supplemental brief, defendant contends imposition of the upper term violates the holding of Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely) because "[i]n selecting the upper term of imprisonment ... the judge relied on factors other than those admitted by appellant or found true by the jury." We find no error.

Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi) 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, 120 S.Ct. at pp. 2362-63, 147 L.Ed.2d at p. 455.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury's verdict or admitted by the defendant. Thus, when a sentencing court's authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-304, 124 S.Ct. at pp. 2537-38, 159 L.Ed.2d at pp. 413-414.)

Relying on Apprendi and Blakely, defendant claims the trial court erred in imposing the upper term because the court relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thus depriving him of the constitutional right to a jury trial on facts essential to the sentence he received.

In addition to the comments of the trial judge that we have set forth above regarding his reasons for assessing the upper term of imprisonment (see, ante, at p. 136), at the sentencing hearing the judge confirmed that each side had received a copy of the probation report and stated that he had read and considered the report in arriving at his sentence. He noted, too, that defendant had "served a prior prison term," that defendant was on parole at the time of the offense and that "pursuant to the comments of his parole agent and the conviction, his performance on parole would have to be deemed unsatisfactory." For all of those reasons, the court adjudged the upper term of three years on count one.

Defendant makes two arguments regarding his Blakely claim. He first says that, to the extent the court took into consideration the fact of his prior convictions, the court violated his Sixth Amendment right to a jury trial notwithstanding language in Apprendi and Blakely specifically excepting the fact of a prior conviction from those facts that must be admitted or submitted to a jury before they may be used to increase a defendant's penalty for a crime. He argues that the prior conviction exception is merely dictum and that we should not follow it.

Pointing out that he neither admitted the prior convictions referred to in the probation report nor were they proven in any formal fashion, defendant next says that reliance on those convictions cannot support his upper term sentence. We disagree with both arguments.

Assuming without deciding that Blakely applies to California's determinate sentencing scheme, we are able to reject defendant's first argument without entering into a lengthy discussion of holdings versus dicta in appellate opinions. "To say that dicta are not controlling ... does not mean that they are to be ignored; on the contrary, dicta are often followed. A statement that does not possess the force of a square holding may nevertheless be considered highly persuasive, particularly when made by an able court after careful consideration, or in the course of an elaborate review of the authorities, or when it has been long followed. In short, while a court is free to disregard a dictum that it strongly disapproves, it is quite likely to rely on a dictum where no contrary precedent is controlling and where the view commends itself on principle." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 947, p. 989.) This has long been the law. (See Adams v. Seaman (1890) 82 Cal. 636, 639, 23 P. 53 ["as the point appears to have been quite elaborately considered, and as the opinion was concurred in by the whole court in Bank, what was said is entitled to great weight, if it be not taken as authority in the strict sense"]; Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169, 78 Cal.Rptr.2d 819.)

In Almendarez-Torres v. United States (1998) 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (Almendarez-Torres), the United States Supreme Court held that title 8 of the United States Code section 1326(b)(2), which authorized a court to increase the sentence of a recidivist deported alien from two years to 20 years if the prior deportation was based upon a conviction for an aggravated felony, was a penalty provision to be imposed by the trial judge rather than a statute that defined a separate crime. In light of that, the fact that the prior aggravated...