P. v. Allen

Filed 10/10/07 P. v. Allen CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH ALEXANDER ALLEN,
Defendant and Appellant.
B193296
(Los Angeles County
Super. Ct. No. BA230552)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Carol H. Rehm Jr., Judge. Affirmed as modified and remanded with directions.
Murray A. Rosenberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kevin H.
Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and
Respondent.

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____________________________
SUMMARY
Joseph Allen was convicted of two counts of assault with a firearm and one count
each of second degree robbery, possession of cocaine for sale, possession of a controlled
substance while in possession of a firearm and felon in possession of a firearm, with
firearm and great bodily injury allegations found true. The trial court originally
sentenced Allen to a term of 30 years in state prison. In a prior appeal, we found some of
Allen’s claims of sentencing error to have merit and, as a result, stayed punishment on
two counts, partially reversed Allen’s sentence on another count and remanded the matter
for resentencing. Thereafter, the trial court imposed a sentence of 27 years, 4 months in
state prison.
In this appeal, Allen challenges his sentence upon remand, arguing that the trial
court erroneously imposed a concurrent sentence as to one count for which we previously
ordered Allen’s sentence stayed. In this regard, we agree. However, we reject Allen’s
further claims of error in the trial court’s imposition of the upper term on the robbery
count as well as its imposition of a consecutive sentence on one of the assault with a
firearm counts.1
1 In January 2007 (after the completion of briefing in this appeal), the United States
Supreme Court issued its decision in Cunningham v. California (2007) __ U.S. __ [127
S.Ct. 856], and both parties filed supplemental letter briefs addressing the impact of this
decision on the sentencing issues Allen raises. Similarly, when our Supreme Court
issued its decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v.
Sandoval (2007) 41 Cal.4th 825, both parties filed supplemental letter briefs to address
the significance of these decisions with respect to Allen’s pending appeal.

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FACTUAL AND PROCEDURAL SYNOPSIS
The facts and prior proceedings in this matter are set forth in our unpublished
opinion in connection with Allen’s first appeal. (People v. Allen (Dec. 7, 2005,
B174223) [nonpub. opn.].) Accordingly, we will not repeat them here.
As relevant here, the trial court on remand (just as at the time of Allen’s original
sentencing) selected the robbery count (count 4 involving victim Gregory Jones) as the
base count and imposed the upper term of five years and further imposed a consecutive
one-year sentence (one-third the midterm) for the assault with a firearm committed
against Martin Davis (count 2). The court also imposed a concurrent three-year sentence
for possession of a controlled substance while carrying a firearm (count 6). Allen does
not challenge the remaining components of his sentence.
Allen appeals.
DISCUSSION
I. The Sentence on Count 6 Must Be Stayed.
In our prior opinion, we noted that, in count 5, the jury convicted Allen of
possession for sale of cocaine base, with a related allegation he was armed with a firearm
found true. In count 6, the jury convicted him of possession of a controlled substance
while armed with a loaded and operable firearm. Accordingly, we found “imposing
concurrent terms on these two counts was the classic situation of imposing multiple
punishment for the same act” such that the lesser punishment on count 6 should be
stayed. (People v. Allen, supra, B174223, pp. 15-16.) Although the trial court on remand
initially noted this point, as Allen argues and the People concede, the court apparently
misspoke in ultimately stating Allen was sentenced to a concurrent state prison term of
three years on this count. Again, this sentence must be stayed.

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II. The Trial Court Did Not Err in Imposing the Upper Term on the Robbery
Count (Count 4).
At Allen’s sentencing hearing on remand, in (again) imposing the upper term on
the robbery count, the trial court stated as follows: “The high term is selected because of
defendant’s 20-year criminal record, his wanton and dangerous conduct, the extreme
danger he posed to the community, and the fact that he was on probation when he
committed this crime.”
According to Allen, under Cunningham v. California, supra, __ U.S. __ [127 S.Ct.
856]; Blakely v. Washington (2004) 542 U.S. 296; and Apprendi v. New Jersey (2000)
530 U.S. 466, 490, the trial court violated his jury trial rights by imposing the upper term
based on facts not found by the jury. He acknowledges that the trial court relied, at least
in part, on his prior convictions. In Cunningham, supra, __ U.S. __ [127 S.Ct. 856], the
United States Supreme Court reaffirmed its prior holdings that a trial court may increase
the penalty for a crime based on a defendant’s prior convictions without submitting that
question to a jury. (Cunningham, supra, 127 S.Ct. at p. 868; see Almendarez-Torres v.
United States (1998) 523 U.S. 224; Blakely, supra, 542 U.S. at p. 301.) Further, before
Cunningham, California courts broadly construed this prior conviction exception to
Blakely and Apprendi to apply not only to the fact of the prior convictions, but also to
other issues relating to the defendant’s recidivism, including the existence of “numerous”
or increasingly serious prior convictions. (See People v. Thomas (2001) 91 Cal.App.4th
212, 221-222 [“courts have held that no jury trial right exists on matters involving the
more broadly framed issue of ‘recidivism’”]; see also People v. McGee (2006) 38 Cal.4th
682, 706-707 [“numerous state and federal court decisions have interpreted the
Almendarez-Torres exception more broadly than defendant urges here, and have
concluded that Apprendi does not preclude a court from making sentencing
determinations related to a defendant’s recidivism”].) Allen urges nonetheless that the
Almendarez-Torres exception should be narrowly construed.

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Furthermore, Allen argues, “because other factors were cited by the trial court that
blended into its decision to impose the high term,” his upper term sentence cannot stand.
He concedes, however, that our Supreme Court’s decision in Black II, supra, 41 Cal.4th
799, is contrary to his position here. The Black II Court expressly reaffirmed the pre-
Cunningham appellate decisions broadly construing the Almendarez-Torres prior
conviction exception, emphasizing that recidivism is a traditional judicial sentencing
consideration that need not be tried to the jury under the Sixth and Fourteenth
Amendments. Accordingly, the Black II Court concluded, the defendant’s criminal
history established an aggravating circumstance under California Rules of Court, rule
4.421(b)(2) “defendant’s prior convictions . . . are numerous or of increasing seriousness”
[and] “that independently satisf[ies] Sixth Amendment requirements and render[s] him
eligible for the upper term.” (Black II, supra, 41 Cal.4th at p. 820.)
Here, the trial court cited not only Allen’s 20-year criminal history but also the
fact he was on probation at the time he committed this crime—either of which rendered
him eligible for the upper term. Allen has demonstrated no Sixth Amendment violation.
III. The Trial Court Did Not Err in Imposing a Consecutive Sentence on Count 2.
Allen also argues in this appeal that it was error to impose a consecutive sentence
on count 2 (assault with a firearm as to Martin Davis). At the sentencing hearing on
remand, the trial court specifically stated: “It’s consecutive because of the fact that this is
a separate . . . act of violence committed by the defendant.” In Black II, supra, 41 Cal.4th
799, our Supreme Court reaffirmed its determination that the “imposition of consecutive
terms under [Penal Code] section 699 does not implicate a defendant’s Sixth Amendment
rights.” There is no presumption that concurrent sentences will be granted; the
sentencing court is not required to make factual findings, but rather must only set forth its
reasons. Consequently, Allen has demonstrated no Sixth Amendment violation with
respect to the imposition of a consecutive sentence on this count involving a separate act
of violence against a separate victim.

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DISPOSITION
The concurrent term imposed on count 6 is stayed. This matter is remanded to the
trial court with directions to prepare a new abstract of judgment indicating that this
sentence is stayed and to forward the amended abstract to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WOODS, J.
We concur:
PERLUSS, P.J.
JOHNSON, J.

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