P. v. Williams

Filed 3/8/07 P. v. Williams CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
DORIAN D. WILLIAMS,
Defendant and Appellant.
B191852
(Los Angeles County
Super. Ct. No. NA068956)
APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J.
Ferrari, Judge. Affirmed in part and reversed in part with directions.
Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and
Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________

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Dorian D. Williams appeals from the judgment entered after a jury convicted him
of selling cocaine base, possessing cocaine base for sale, and of cocaine base possession.
For the reasons set forth below, we reverse the judgment insofar as it imposed a
concurrent sentence for the cocaine possession charge and modify the judgment to reflect
that the sentence is stayed instead. In all other respects, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
At around 10:30 p.m. on January 24, 2006, Long Beach police officers using a
confidential informant to conduct a narcotics sting operation arrested Dorian D. Williams
after he sold a $20 rock of cocaine to the informant. After Williams was driven back to
the police station, an officer found a bindle of rock cocaine on the floor of the patrol car.
Williams was charged with three counts: (1) selling cocaine base (Health & Saf. Code,
§ 11352, subd. (a)); (2) possession of cocaine base for sale (Health & Saf. Code,
§ 11351.5); and (3) possession of cocaine base. (Health & Saf. Code, § 11350,
subd. (a).) A jury found Williams guilty of all three counts. The court imposed the upper
term sentence of five years on count 1, plus an additional three years because Williams
had a previous drug-related conviction. (Health & Saf. Code, § 11370.2, subd. (a).)
Concurrent sentences of four years on count 2 and two years on count 3 were also
imposed.
On appeal, Williams contends the trial court violated Penal Code section 654 by
imposing a concurrent sentence on count 2, instead of staying that sentence. He also
contends the trial court violated his constitutional right to a jury trial by imposing the
high term sentence on count 1 without letting a jury determine whether the aggravating
factors to justify such a sentence were true.

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DISCUSSION
1. No Jury Trial Is Required When A High Term
Is Based Solely on the Fact of Prior Convictions
Williams’s probation report showed that he had 19 prior convictions and 8 arrests,
and recommended imposing the mid-term sentence on the base term count because of his
criminal history and because the current offenses showed planning and professionalism
that indicated pre-meditation. At the sentencing hearing, however, the court imposed the
high term sentence of five years on count 1, citing one aggravating factor only:
Williams’s “extensive record.” Williams contends this violated his constitutional right to
a jury trial on the aggravating factors that led to a sentence above the statutory norm.
In Almendarez-Torres v. United States (1998) 523 U.S. 224, 243, the court held
that the fact of a prior conviction may be found by the judge, not a jury, even if it
increases the maximum statutory sentence. In Apprendi v. New Jersey (2000) 530 U.S.
466, 490 (Apprendi), the court held that the right to jury trial extended to sentencing
schemes that allowed a judge to impose a sentence above the statutory maximum based
on facts other than a prior conviction not found by a jury or admitted by a defendant.
Williams contends that a potential shift in votes by the Supreme Court indicates that
Almendarez-Torres is no longer good law. At the time the parties submitted their briefs,
the United States Supreme Court had not yet issued its decision in Cunningham v. United
States (2007) 549 U.S. __, 127 S.Ct. 856. The Cunningham court reversed the California
Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238, and invalidated our
state’s determinate sentencing law because it allowed judges to make factual
determinations that could increase a defendant’s sentence. However, the Cunningham
court appears to have left intact the exception for prior convictions, stating: “Other than a
prior conviction, see Almendarez-Torres v. United States[, 523 U.S. at pp. 239-247], we
held in Apprendi, ‘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.’ ” (Cunningham, supra, 549 U.S. __, 127 S.Ct. at p. 864, citing Apprendi, supra,

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530 U.S. at p. 490.) The court went on to state that it had reaffirmed the rule of Apprendi
many times since (Cunningham, supra, at p. 864) and to apply the rule from Apprendi
and other related decisions to strike down California’s determinate sentencing scheme.
The record here leaves no doubt that Cunningham-Apprendi error did not occur.
The only stated basis for the court’s decision to impose the high term was Williams’s
extensive prior convictions, a fact that our trial courts may still determine for themselves
without violating a defendant’s jury trial rights. Accordingly, we affirm the high term
sentence.
2. The Concurrent Sentence on Count 2 Must be Stayed
Williams contends and respondent concedes that the concurrent sentence imposed
on count 2 should have been stayed instead under Penal Code section 654. We therefore
reverse the judgment only insofar as it imposed a concurrent sentence on that count and
will order the judgment modified to stay the sentence on count 2.
DISPOSITION
The judgment is reversed only insofar as it imposed a concurrent four year
sentence on count 2. The judgment is modified to stay that sentence instead, pursuant to
Penal Code section 654. The clerk of the superior court is directed to modify the abstract
of judgment accordingly and forward a corrected copy of the abstract to the Department
of Corrections. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
RUBIN, J.
WE CONCUR:
COOPER, P. J. FLIER, J.

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