People v. Mejia, B194964 (Cal. App. 6/27/2007), B194964

CourtCalifornia Court of Appeals
Writing for the CourtKlein
PartiesTHE PEOPLE, Plaintiff and Respondent, v. RICHARD MICHAEL MEJIA, Defendant and Appellant.
Docket NumberB194964
Decision Date27 June 2007

Page 1

THE PEOPLE, Plaintiff and Respondent,
RICHARD MICHAEL MEJIA, Defendant and Appellant.
Court of Appeals of California, Second Appellate District, Division Three
June 27, 2007

Appeal from a judgment of the Superior Court of Los Angeles County, No. SA059237, Amy D. Hogue, Judge. Affirmed.

Athena Shudde, 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, Lance E. Winters and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.


Richard Michael Mejia appeals the judgment entered following his conviction by jury of possession of a firearm by a felon and carrying a loaded firearm on his person and while Mejia was an active participant in a criminal street gang. (Pen. Code, §§ 12021, subd. (a)(1), 12031, subds. (a)(1), (a)(2)(C).)1 The jury found Mejia committed each offense for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A).

Mejia contends the trial court committed sentencing error in imposing the upper term of three years for possession of a firearm by a felon and the upper term of four years for the criminal street gang enhancement. We reject these claims, finding the trial court properly relied on factors related to Mejia's recidivism to impose the upper terms and affirm the judgment.


1. The People's evidence.

a. The current offense.

On February 3, 2006, at approximately 2:30 a.m., patrolling City of Los Angeles police officers noticed Mejia speaking with two males at Sixth Street and Brooks Avenue in the Oakwood section of Venice. Mejia looked in the direction of the patrol vehicle then dropped a loaded pistol. The officers detained Mejia and recovered the weapon.

b. Prior offenses.

On July 11, 2003, California Highway Patrol officers stopped Mejia for a traffic violation and found a loaded Uzi assault rifle and a .380 caliber pistol in Mejia's car.

On August 30, 2004, City of Los Angeles police officers attempted to stop a vehicle in which Mejia was a passenger to check Mejia's parole status. The vehicle, which was being driven by an active member of a criminal street gang, refused to yield and, during a brief chase, a nine-millimeter pistol was discarded from the passenger side of the vehicle. Mejia was arrested for possession of the weapon, he pleaded guilty to the offense and was sentenced to two years in prison.

For the purpose of the charged offense of possession of a firearm by a felon, the parties stipulated Mejia had a prior felony conviction.

c. Expert testimony.

A gang expert testified, inter alia, Mejia was a leader of a criminal street gang based in Venice and that Mejia possessed the weapon in issue for the benefit of the gang. After Mejia's release from prison in September of 2005, Mejia was found in gang territory in the company of Juan Bernal, a known member of Mejia's gang who was Mejia's brother-in-law.

2. Defense evidence.

Mejia's parole agent testified that after Mejia's release from prison, Mejia lived in Riverside with his wife, children and brother-in-law. Mejia was in compliance with the terms of his parole until his arrest in this case.

3. Verdicts and sentencing.

The jury convicted Mejia as charged and found a criminal street gang enhancement true.

Mejia admitted two prior prison terms within the meaning of section 667.5, subdivision (b), one related to a conviction of possession of a controlled substance (Health & Saf. Code, § 11352) in 2001, and one for a conviction of possession of a firearm by a felon in 2004.

The prosecutor asked the trial court to impose the maximum sentence because Mejia had avoided conviction in numerous gang cases including: (1) a 1998 case involving the murder of multiple members of a rival gang; (2) in 2003 Mejia was arrested in possession of an Uzi that had been used one month earlier to commit a gang murder in which Mejia tentatively was identified as one of the suspects; and, (3) approximately two years ago Mejia was arrested in possession of a gun that had fired casings found at a crime scene where one individual was murdered and another shot in the leg. The prosecutor noted there were at least five circumstances in aggravation under California Rules of Court, rule 4.421(b), including, Mejia was a serious danger to society because he was detained in this case in possession of a loaded firearm with live rounds in the chamber.2

The trial court agreed the possession of a loaded firearm indicates a danger to society but indicated the current case did not involve violence within the meaning of rule 4.421(b)(1).

The prosecutor next observed Mejia's record of crime was increasing in seriousness in that Mejia had been arrested or imprisoned every year since the age of 17 years. Specifically, in 1997 Mejia was arrested for possession of a controlled substance and for possession for sale of marijuana. In 1999 he was convicted of possession of a controlled substance and was granted probation. However, in February of 2001, probation was revoked and he was sentenced to prison. In July of 2003, Mejia was arrested for a violation of section 12025, subdivision (b)(1), possession of a concealed firearm by a felon, his parole was violated and he was returned to prison. In 2004, Mejia was convicted of unlawful possession of a firearm and was sent to prison for two years. Mejia was paroled in September of 2005 and he was arrested in this matter while he was on parole.

The prosecutor noted that under rule 4.421(b)(3) Mejia has served multiple prior prison terms, under rule 4.421(b)(4) Mejia committed the current case while he was on parole, and under rule 4.421(b)(5) Mejia's performance on probation or parole has been unsatisfactory, as shown by the fact he was on parole at the time he committed the current offense and he previously had been sent to prison upon revocation of probation.

The trial court indicated it agreed with these four factors in aggravation, found no factors in mitigation and found in aggravation the factor listed in rule 4.414(a)(2), i.e., the defendant was armed or used a weapon.

Mejia personally addressed the trial court to state he was innocent of the current charges and he had been trying to avoid gang contact. The trial court agreed the defense evidence showed Mejia was trying to make positive changes in his life. However, Mejia was on parole at the time of the current offense and the trial court found it "very troubling" that Mejia previously was convicted of the same offense he committed in this case.

The trial court found no factors in mitigation and selected the upper term on the substantive offense and the criminal street gang enhancement, plus two years for the prior prison terms, for a total term of nine years in state prison. In response to the prosecutor's request for clarification, the trial court indicated it had imposed the upper term based on the factors found in rule 4.421(b)(2), (3), (4) and (5), and rule 4.414(a)(2), and (b)(1), (2), (3) and (4), and found no factors in mitigation.


Mejia contends imposition of the upper term on the substantive offense and the enhancement violated his Sixth Amendment right to a jury trial as set forth in Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). Mejia also claims sentencing error based on the assertedly improper dual use of his prior prison terms to impose both the upper term and prior prison term enhancements under section 667.5, subdivision (b).

The People respond Mejia forfeited these claims by failing to raise them in the trial court, the upper terms are supported by Mejia's recidivism, Cunningham does not apply to the upper term imposed for the criminal street gang enhancement, and any error was harmless.


1. Relevant principles.

a. Apprendi and its progeny.

Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], held: "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." (Id. at p. 490.) Blakely v. Washington (2004) 542 U.S. 296, 301 [124 S.Ct. 2531, 159 L.Ed.2d 403], reiterated this rule and applied it to invalidate enhanced punishment imposed under a sentencing scheme that bore some similarity to the upper, middle, and lower term system used in the California's Determinate Sentencing Law (DSL).

In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court held the provision in section 1170, subdivision (b), that the middle term be imposed "`unless there are circumstances in aggravation or mitigation of the crime,' " did not trigger the right to jury trial under Apprendi and Blakely.3 However, in Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 877], the United States Supreme Court concluded the middle term is the statutory maximum sentence under the DSL, overruling People v. Black, supra, 35 Cal.4th 1238. Cunningham held that "[b]ecause the DSL 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, 127 S.Ct. at p. 871.)

b. The prior conviction exception.

Apprendi recognized a "prior conviction" exception to the rule a trial court may not increase the penalty for a crime based on aggravating factors that were not submitted to the jury or proved beyond a reasonable doubt. (Apprendi v. New Jersey, supra, 530 U.S., at p. 490.) This exception derives from Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350], which recognized the special role of a defendant's recidivism in a trial court's authority to sentence a criminal defendant.

The prior...

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