P. v. Moore

Filed 10/30/07 P. v. Moore CA6
Opinion following remand by U.S. Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
CALVIN LOVELLE MOORE,
Defendant and Appellant.
H029699
(Santa Clara County
Super. Ct. Nos. CC459684; CC586869)
In case number CC459684, defendant Calvin Lovelle Moore pleaded guilty to
possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), being under the influence
of cocaine (Health & Saf. Code, § 11550, subd (a)), possession of drug paraphernalia
(Health & Saf. Code, § 11364) and resisting a peace officer (Pen. Code, § 148,
subd. (a)(1)). Defendant also admitted one prior “strike” conviction (Pen. Code, §§ 667,
subds. (b)-(i) & 1170.12) and one prior prison term (Pen. Code § 667.5, subd. (b)). In
case number CC586869, based on a separate incident, defendant pleaded no contest to
petty theft with a prior (Pen. Code, § 666) and second degree burglary (Pen. Code,
§§ 459-460, subd. (b)). Defendant again admitted to a prior “strike” conviction and prior
prison term, and further admitted the allegation that he was out of custody on bail at the
time he committed the burglary (Pen. Code, § 12022.1).
On November 15, 2005, the trial court granted defendant’s motion to strike the
strike allegations in both cases and sentenced defendant to four years in prison in the first

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case and to an additional two-year and eight-month term for the second case. Defendant
contends that the trial court relied on improper aggravating factors in selecting the upper
term and that imposition of the upper term sentence violated Blakely v. Washington
(2004) 542 U.S. 296 (Blakely) and defendant’s constitutional rights. In our original
opinion, we held that the trial court did not commit Blakely error. (People v. Moore
(Nov. 3, 2006, No. H029699) [nonpub. opn.].) The United States Supreme Court
remanded to this court for further consideration in light of Cunningham v. California
(2007) __ U.S. __ [127 S.Ct. 856] (Cunningham). After receiving supplemental briefing
from the parties regarding the impact of the California Supreme Court’s decision in
People v. Black (2007) 41 Cal.4th 799 (Black II), we again affirm.
I. Factual Background
A. Drug Case: Case Number CC459684
On July 13, 2004, police officers stopped defendant for a traffic violation. The
officers asked defendant to exit the car. As defendant exited the car, he appeared to put a
“green leafy substance” in his mouth. Defendant refused the officers’ commands to
remove the substance and also refused to take his left hand out of his jacket pocket. The
officers forcibly removed defendant’s hand from his pocket and he dropped to the
ground, feigning illness. He then jumped up, throwing his hands in the air, and the
officers saw two small plastic bags leave his left hand. The bags contained 7.6 grams of
cocaine. After an exchange of words, defendant was detained. A subsequent search of
defendant revealed a glass smoking pipe. Defendant admitted possession and use of
cocaine to the police and to the probation officer. A blood sample confirmed the
presence of cocaine.

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B. Theft Case: Case Number CC586869
On March 26, 2005, defendant entered Kohl’s Department Store and concealed
several items on his person, including jewelry, clothing and perfume (valued at $166.50).
He left the store without paying for the items and was stopped by a loss prevention
officer. Defendant admitted to police he entered the store with the intent to steal the
items.
II. Discussion
Defendant contends that the trial court committed sentencing error by relying on
the fact of a prior conviction both to impose an upper term and as the basis for an
enhancement in regard to the drug case, which the court chose as the principal case
during sentencing. The People argue that defendant forfeited this claim by failing to
object below.
In People v. Scott (1994) 9 Cal.4th 331, 356 (Scott), the California Supreme Court
considered whether “complaints about the manner in which the trial court exercises its
sentencing discretion and articulates its supporting reasons can[] be raised for the first
time on appeal.” Reasoning that “[r]outine defects in the court’s statement of reasons are
easily prevented and corrected if called to the court’s attention[,]” the court found that
“the waiver doctrine should apply to claims involving the trial court’s failure to properly
make or articulate its discretionary sentencing choices.” (Id. at p. 353.) This rule applies
to claims regarding the trial court’s dual use of a fact in sentencing. (See ibid.; see also
People v. de Soto (1997) 54 Cal.App.4th 1, 7-8 [applying Scott forfeiture rule to claim of
improper dual use of facts to impose an upper term sentence].)
The Scott court further noted, however, that the forfeiture rule applies only if there
was a “meaningful opportunity to object” to the trial court’s statements. (Scott, supra, 9
Cal.4th at p. 356.) “This opportunity can occur only if, during the course of the
sentencing hearing itself and before objections are made, the parties are clearly apprised

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of the sentence the court intends to impose and the reasons that support any discretionary
choices.” (Ibid.)
Defendant contends that he did not have a meaningful opportunity to object
because he did not know of the court’s ruling prior to the pronouncement of sentence.
Although the probation report includes the prior prison term as a potential aggravating
factor, the probation department did not recommend the aggravated term. The trial court
did not issue a preliminary or tentative ruling prior to pronouncing the sentence and did
not seek or entertain objection from counsel after stating the sentence and its reasons for
imposing the upper term.
The Supreme Court elaborated on the requirement that the defendant have a
“meaningful opportunity to object” in People v. Gonzalez (2003) 31 Cal.4th 745
(Gonzalez). As here, the defendants in Gonzalez argued that the court impermissibly
relied on a single fact to impose the upper term and an enhancement. (See id. at p. 750.)
Also as here, the probation report recommendation in Gonzalez did not align with the
trial court’s actual sentence and the trial court imposed sentence at the same time it first
apprised the parties of the sentence and statement of reasons. (See id. at pp. 750, 754.)
The Gonzalez court stated: “Because the court had not previously notified the parties that
it intended to rely on defendants’ firearm use as a reason for its sentence, it should have
more clearly given the parties a meaningful opportunity to object by saying it was
announcing proposed sentences for each defendant and its reasons for the sentences, that
the prosecutor and defendants were entitled to object, and that if the objections were
meritorious it would alter the sentences appropriately.” (Id. at p. 755.) The court
nevertheless concluded that on the specific facts before it the defendants had been given a
“meaningful opportunity to object” because defense counsel actually objected to the
sentence on other grounds and the court considered the objection on the merits. (Ibid.)
The approach outlined in Gonzalez was not taken in this case and the record lacks
similar facts showing that defendant had an opportunity to object or actually objected.

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After pronouncing the sentence, the trial court advised defendant of his appellate rights,
thanked him and wished him luck. Defense counsel’s only comment after being apprised
of the sentence was to note the applicability of Penal Code section 654 to count 2 in the
theft case. The proceedings were effectively closed at the time this comment was made,
the court did not acknowledge counsel’s statement, and there is no indication that an
objection would have been heard or considered. We find defendant had no “meaningful
opportunity to object” and that the Scott forfeiture rule does not apply in this case. We
therefore proceed to the merits of defendant’s claim. 1
At the time of sentencing, Penal Code section 1170 directed that “[w]hen a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the court shall order imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime.” (Former Pen. Code, § 1170, subd. (b); see also
Cal. Rules of Court, rule 4.420, subds. (a)-(b).) 2 Rules 4.421 and 4.423 list the possible
circumstances in aggravation and mitigation. Any fact that is an element of the crime or
the basis for a sentence enhancement cannot be used to justify imposition of the upper
term. (Pen. Code, § 1170, subd. (b); rule 4.420, subds. (c) & (d).)
The court must state its reasons for imposing the upper term (rule 4.420(e)), and
those reasons must be supported by substantial evidence on appeal (People v. Searle
(1989) 213 Cal.App.3d 1091, 1096). “Improper dual use of the same fact for imposition
of both an upper term and a consecutive term or other enhancement does not necessitate
resentencing if it is not reasonably probable that a more favorable sentence would have
1 Because we conclude that defendant has not forfeited his claim, we need not address
defendant’s alternative argument that defense counsel provided ineffective assistance by
failing to object below.
2 All further rule references are to the California Rules of Court.

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been imposed in the absence of the error.” (People v. Osband (1996) 13 Cal.4th 622, 728
(Osband), internal quotation marks omitted.)
The court imposed the upper term for the principal offense in the drug case (count
1—possession of a controlled substance) and imposed a one-year consecutive term for
defendant’s prior conviction pursuant to Penal Code section 667.5, subdivision (b). In
imposing the upper term, the trial court stated: “And I’ve selected the aggravated terms
[sic] because the defendant has a number of circumstances in aggravation. And he’s
served a prior prison term, and, let’s see, he was on probation or parole when the crime
was committed and his prior performance on probation or parole was unsatisfactory. And
these outweigh any factors in mitigation.” The court thus improperly relied on
defendant’s prior prison term as the basis for a sentencing enhancement and as a factor in
aggravation. However, because “the finding of even one factor in aggravation is
sufficient to justify the upper term” (People v. Steele (2000) 83 Cal.App.4th 212, 226; see
also Osband, supra, 13 Cal.4th at pp. 728-729), we must consider the other factors cited
by the trial court to determine whether the court’s error was harmless.
In addition to the prior prison term, the trial court cited defendant’s probationary
or parolee status at the time the crimes were committed (rule 4.421(b)(4)) and prior
unsatisfactory performance on probation and/or parole (rule 4.421(b)(5)) as factors
supporting the upper term. Relying on Blakely, supra, 542 U.S. 296, defendant argues
that the trial court’s imposition of the aggravated term based on these factors violated his
right to a jury trial. 3
3 Defendant also contends that the court relied improperly on hearsay evidence to
determine the “character” of his prior convictions (i.e., whether the prior convictions
were numerous or of increasing seriousness), and in finding that his prior performance on
probation was unsatisfactory. We note, however, that in imposing the upper term the trial
court did not cite a finding that defendant’s prior convictions were numerous and/or of
increasing seriousness.

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In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (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.” (Italics added.) The Blakely
court considered the issue further, and determined that “the ‘statutory maximum’ for
Apprendi purposes is 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, italics omitted.) Recently, the United States Supreme Court concluded
that under California’s determinate sentencing law, the middle term is the relevant
“statutory maximum.” (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 868].) By
allowing imposition of an upper term sentence based on aggravating circumstances found
solely by the judge, California’s law “violates Apprendi’s bright-line rule[.]” (Ibid.)
Pursuant to Cunningham, the upper term may be imposed only if the factors relied upon
comport with the requirements of Apprendi and Blakely. (See id. at p. __ [127 S.Ct. at
p. 871].)
Defendant argues that even though the two remaining factors cited by the trial
court in this case arguably are related to “recidivism,” they do not fall within the “prior
conviction” exception to Apprendi’s bright-line rule. In Apprendi, the United States
Supreme Court described the “prior conviction” exception, which originated with the
court’s decision in Almendarez-Torres v. United States (1998) 523 U.S. 224
(Almendarez-Torres), as “a narrow exception to the general rule.” (Apprendi, supra, 530
U.S. at p. 490.) Although the United States Supreme Court has not yet delineated the
precise contours of this “narrow exception,” the court affirmed in Cunningham that
Apprendi encompasses any “facts concerning the offender,” other than the fact of a prior
conviction. (See Cunningham, supra, __ at p. __ & fn. 14 [127 S.Ct. at pp. 868-869 &
fn. 14].)

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The California Supreme Court’s post-Cunningham decision, Black II, supra, 41
Cal.4th 799, provides additional guidance regarding the breadth of the Almendarez-
Torres exception. In Black II, the court addressed the applicability of the exception to
another of the recidivism-related aggravating factors—“‘defendant’s prior
convictions . . . are numerous or of increasing seriousness.’” (Black II, at p. 818.) Our
high court determined that this factor falls within the “prior conviction” exception: “As
we recognized in [People v. McGee (2006) 38 Cal.4th 682], 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. [Citations.] [¶] The
determinations whether a defendant has suffered prior convictions, and whether those
convictions are ‘numerous or of increasing seriousness’ [citation] 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.” (Black II, at pp. 819-820,
footnote omitted.) 4
In this case, the trial court imposed the upper term based, in part, on the finding
that defendant was on probation or parole at the time the instant offenses were committed
(rule 4.421(b)(4)). If, as here, the defendant has admitted the date of the current offense, 5
the only additional facts required to support this aggravating factor are the effective date
of the defendant’s probation or parole and the length of the term imposed. These bare
4 California cases involving other recidivism-related factors, including those at issue in
this case, are still pending before the California Supreme Court. (See People v.
Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted
Feb. 7, 2007, S148914; People v. Towne, review granted July 14, 2004 & supp. briefing
ordered Feb. 7, 2007, S125677.)
5 Defendant admitted the approximate date of the current offenses—“on
July 13th, [20]04” for the drug incident and “on or about March 26, 2005” for the petty
theft—in pleading guilty and no contest, respectively, to the charged crimes.

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facts are akin to the date of the prior conviction and the offense committed, and may be
resolved by reference to the records of conviction.6 The factual determination that the
defendant was on probation or parole at the time of the new offense is, in other words, a
determination “related” to the fact of the defendant’s prior convictions. It also is the type
of determination “‘more typically and appropriately undertaken by a court[,]’” than by a
jury. (See Black II, supra, 41 Cal.4th at p. 820.) We therefore conclude that the “on
probation or parole” factor falls within the California Supreme Court’s construction of
the Almendarez-Torres exception.
As stated in Black II, “the presence of one aggravating circumstance renders it
lawful for the trial court to impose an upper term sentence[,]” and any “judicial fact
finding on [] additional aggravating circumstances is not unconstitutional.”7 (Black II,
supra, 41 Cal.4th at p. 815.) Accordingly, based on the presence of this single valid
aggravating factor, we are compelled to affirm the judgment.
6 The record in this case supports the court’s finding that defendant was on probation at
the time of the current offenses. On December 26, 2002, he was placed on three years of
formal probation for misdemeanor violations. Defendant remained on probation after
modification on February 7, 2005.
7 We therefore do not reach defendant’s additional argument that the trial court’s finding
regarding defendant’s “prior performance on probation or parole” does not fall within the
Almendarez-Torres exception. Nor do we consider the assertion that the trial court relied
improperly on hearsay evidence in determining that defendant’s prior performance on
probation was unsatisfactory.

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III. Disposition
The judgment is affirmed.
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P.J.
_____________________________
McAdams, J.

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