P. v. Gonzales

Filed 12/3/07 P. v. Gonzales CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAMIRO GONZALES,
Defendant and Appellant.
H031003
(Santa Clara County
Super. Ct. No. CC624228)
Defendant Ramiro Gonzales pleaded guilty to two misdemeanor counts of driving
with a suspended or revoked license (Veh. Code, §§ 14601.2, subd. (a), 14601.5, subd.
(a)),1 and admitted that he had a prior conviction for driving on a suspended or revoked
license. A jury found defendant guilty of two counts of driving under the influence of
alcohol (§ 23152, subds. (a) & (b)). Defendant stipulated that, based on the jury’s
findings, he was guilty of four counts of driving under the influence. The trial court
found true allegations that defendant had three prior convictions for driving under the
influence, all within 10 years of the current offenses, that he had a prior gross vehicular
manslaughter conviction that qualified as a strike (Pen. Code, § 1170.12), and that he had
1 Further statutory references are to the Vehicle Code unless otherwise specified.

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served a prior prison term (Pen. Code, § 667.5, subd. (b)). The court denied defendant’s
Romero2 motion and sentenced him to seven years in state prison.
On appeal defendant contends that the court’s imposition of the upper term of
three years, which was doubled under the Three Strikes law, violated his constitutional
rights to a jury trial and due process. We find no prejudicial error and, therefore, affirm.
BACKGROUND
Defendant was charged by first amended information with two counts of driving
under the influence of alcohol with a prior specified felony (§§ 23152, subds. (a) & (b),
23550.5, subd. (a); counts 1 & 2), two counts of driving under the influence of alcohol
with three or more specified priors (§§ 23152, subds. (a) & (b), 23550, subd. (a); counts 3
& 4), misdemeanor driving with a license suspended or revoked due to a driving under
the influence conviction (§ 14601.2, subd. (a); count 5), and misdemeanor driving with a
license suspended or revoked for refusing to take an intoxication test (§ 14601.5, subd.
(a); count 6). The information further alleged that defendant had two prior misdemeanor
and one prior felony driving under the influence convictions under section 23152, a prior
driving with a suspended license conviction under section 14601.1, and a prior felony
conviction that qualified as a strike (Pen. Code, § 1170.12), and that he had served a prior
prison term for a felony driving under the influence conviction under section 23152 (Pen.
Code, § 667.5, subd. (b)). The court granted defendant’s request to bifurcate trial on the
priors.
On the first day of trial, prior to impaneling a jury, the parties stipulated that “if
the defendant is found guilty of driving a vehicle under the influence of an alcoholic
beverage, then he be [sic] found guilty of counts 1 and 3 and if he is found guilty of
driving a vehicle while having .08 percent and more, then he’s guilty of counts 2 and 4.”
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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In addition, defendant pleaded guilty to counts 5 and 6, the two misdemeanor driving
with a suspended license counts, and admitted the prior section 14601.1 conviction
allegation.
The Prosecution’s Case
Around 9:30 p.m. on March 19, 2006, San Jose Police Officer Aaron Offenberg
was patrolling on Winchester Boulevard when he saw a Cadillac straddling, and swerving
back and forth between, two southbound lanes. He activated his patrol car’s red and blue
lights, and the Cadillac slowly pulled to the right side of the road. Its right front tire
“rolled up to the curb in a jerky motion,” and the car stopped suddenly with the tire on
the curb. Defendant was the driver and sole occupant of the Cadillac.
Defendant’s speech was slurred, his eyes were bloodshot, and Officer Offenberg
smelled an odor of alcohol coming from the Cadillac. He asked defendant to step out of
the car. Defendant stumbled as he did so. Offenberg escorted defendant to the curb and
asked him whether he had been drinking. Defendant did not respond. Offenberg did not
ask defendant to perform any field sobriety tests because defendant could not stand on his
own, and Offenberg felt that defendant was too intoxicated to perform the tests. He
arrested defendant for driving under the influence and drove him to the police station. At
10:26 p.m., a certified phlebotomist drew two vials of defendant’s blood.
Krina Patel, a criminalist at the county crime lab, tested defendant’s blood sample
on March 20, 2006, and found that it had a 0.12 percent blood alcohol content. When the
blood sample was retested on August 8, 2006, it was found to have a 0.11 percent blood
alcohol content.
The Defense Case
Sergeant Jason Woodall was dispatched to defendant’s car stop on March 19,
2006. Defendant was leaning on the patrol car. Woodall asked defendant where he was
coming from and where he was going. Defendant said that he was coming from work
and that he was going home.

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The Verdicts, Findings on the Priors, and Sentencing
On October 12, 2006, outside the presence of the jury, defendant waived his right
to a jury trial on the alleged priors. The jury found defendant guilty of driving under the
influence of alcohol as charged in count 1 (§ 23152, subd. (a)), and guilty of driving
under the influence with a blood alcohol content of .08 percent or more as charged in
count 2 (§ 23152, subd. (b)). As previously stipulated, defendant was also found guilty
of driving under the influence as charged in counts 3 and 4. Following a court trial, the
court found beyond a reasonable doubt that defendant had suffered a section 23152
conviction in August 1998, a section 23152 conviction in June 1998, and a section 23152
conviction in November 1999, all within 10 years of the current offense. The court
further found that defendant had a gross vehicular manslaughter conviction that qualified
as a strike (Pen. Code, § 1170.12), and that he had served a prior prison term for a
section 23152 conviction within the meaning of Penal Code section 667.5,
subdivision (b).
On December 5, 2006, the court denied defendant’s written Romero motion and
sentenced him to seven years in state prison. The sentence consists of the doubled upper
term of six years for count 1 with a consecutive one-year term for the prison prior. The
court stayed the terms for the remaining counts under Penal Code section 654. Defendant
filed a timely notice of appeal.
DISCUSSION
Defendant contends that the imposition of the upper term violated his
constitutional rights as stated in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),
Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California
(2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). He argues that the court relied on
factors not found true beyond a reasonable doubt by a jury, and that his sentence must be
reduced to the middle term.

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In Apprendi, the United States Supreme Court held that, “[o]ther 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.”
(Apprendi, supra, 530 U.S. at p. 490.) In Blakely, the court defined the “ ‘statutory
maximum’ ” to mean “the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra,
542 U.S. at p. 303.) In Cunningham, the court held that because aggravating
circumstances depend on facts found “discretely and solely” by the judge, “the middle
term prescribed in California statutes, not the upper term, is the relevant statutory
maximum.” (Cunningham, supra, 127 S.Ct. at p. 868.) The court reiterated that “[o]ther
than a prior conviction, . . . ‘any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to the jury, and proved beyond a
reasonable doubt.’ ” (Id. at p. 864.)
The California Supreme Court subsequently held that, “[s]o 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.”
(People v. Black (2007) 41 Cal.4th 799, 813 (Black II).)
The question before this court is, therefore, whether any one of the circumstances
cited by the trial court when it imposed the upper term was properly established
consistently with Sixth Amendment principles. In choosing the upper term on count 1,
the court stated: “The court takes the upper term of 6 years based upon the defendant
serving a prison term previously. The defendant’s prior performance on probation and
parole is unsatisfactory and the seriousness of the current offense.” (Italics added.) After
the court imposed various fines and fees, it asked the probation officer if there was

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“[a]nything else.” The probation officer responded: “Yes, Your Honor. I do have one
concern. I believe that the Court used the defendant’s prior commitment to CDC to
aggravate the case, however because we [sic] imposed that time we cannot use it to
aggravate.” The court replied: “That’s correct, so I will strike that reason and give the
other reason[s].”
It is true that the prison term defendant served for a prior driving under the
influence conviction, which was the basis for the one-year prison prior, could not also be
used as a circumstance supporting imposition of the upper term. (Cal. Rules of Court,
rule 4.420(c) [dual use of facts prohibited].) However, in imposing the upper term the
trial court could properly rely on the fact that defendant had also served a prison term for
his 1984 vehicular manslaughter conviction. The fact that the vehicular manslaughter
conviction was being utilized under the Three Strikes law to qualify defendant for
sentencing under that alternative sentencing scheme did not preclude the use of the prison
term served for the conviction as an aggravating circumstance. (People v. Cressy (1996)
47 Cal.App.4th 981, 992.)
The probation officer correctly advised the court that defendant’s commitment to
CDC for his prior driving under the influence conviction was used to impose a
consecutive one-year term and could not be used to aggravate the sentence for the current
driving under the influence conviction. However, the probation officer failed to correctly
advise the court that defendant had another CDC commitment that could be used to
aggravate the sentence. The fact that the probation officer failed to so advise the court
did not preclude the court’s consideration of this fact to impose the upper term. The
record indicates that defendant had served another prison term for his vehicular
manslaughter conviction upon which the court could properly rely in imposing the upper
term.
Prior to Cunningham, in People v. McGee (2006) 38 Cal.4th 682 (McGee), our
Supreme Court interpreted Apprendi to permit judicial factfinding on a defendant’s

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recidivism. “The [United States Supreme Court] . . . explained in Apprendi that
recidivism was distinguishable from other matters employed to enhance punishment,
because (1) recidivism traditionally has been used by sentencing courts to increase the
length of an offender’s sentence, (2) recidivism does not relate to the commission of the
charged offense, and (3) prior convictions result from proceedings that include substantial
protections. [Citations.]” (McGee, supra, 38 Cal.4th at p. 698.) Following Cunningham,
our Supreme Court revisited the issue in Black II, where the defendant argued that he was
entitled to a jury finding on the “ ‘numerous or of increasing seriousness’ ” aggravating
circumstance the trial court used to impose an upper term. The Supreme Court, citing
McGee, rejected the defendant’s argument. (Black II, supra, 41 Cal.4th at pp. 819-820.)
“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).) ‘Recidivism . . . 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 p. 818.)
“Defendant . . . reads the ‘prior conviction’ exception too narrowly. (See People
v. McGee[, supra,] 38 Cal.4th 682 (McGee) [defendant not entitled to have a jury
determine whether his prior conviction in Nevada qualified as a serious felony for the
purpose of imposing a sentence enhancement]; see also People v. Thomas (2001)
91 Cal.App.4th 212, 220-223 [the exception recognized in Apprendi for ‘ “the fact of a
prior conviction” ’ permits a trial court to decide whether a defendant has served a prior
prison term].) As we recognized in McGee, numerous decisions from other jurisdictions
have interpreted the Almendarez-Torres exception to include 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. (See cases cited in McGee, supra, 38 Cal.4th at

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pp. 703-706; see also United States v. Smith (6th Cir. 2007) 474 F.3d 888, 892 [no right
to a jury trial concerning the circumstance whether defendant’s criminal history was
‘ “extensive and egregious” ’].)
“The determinations whether a defendant has suffered prior convictions, and
whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of
Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of
the prior convictions alleged. The relative seriousness of these alleged convictions may
be determined simply by reference to the range of punishment provided by statute for
each offense. This type of determination is ‘quite different from the resolution of issues
submitted to a jury, and is one more typically and appropriately undertaken by a court.’ ”
(Black II, supra, 41 Cal.4th at pp. 819-820, fns. omitted.)
Under Thomas, McGee, and Black II, it is clear that the question of whether
defendant served a prior prison term falls within the Almendarez-Torres exception. Since
the trial court properly cited defendant’s prior prison term as a basis for imposing the
upper term on count 1, and the prison term defendant served for his prior vehicular
manslaughter conviction made defendant eligible for the upper term, defendant’s Sixth
Amendment rights were not violated when the court exercised its discretion to impose the
upper term. No prejudicial error has been shown.

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DISPOSITION
The judgment is affirmed.
_______________________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
MIHARA, J.
_________________________
MCADAMS, J.

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