P. v. Deniz

Filed 3/22/07 P. v. Deniz CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID BORGES DENIZ,
Defendant and Appellant.
F048787
(Super. Ct. Nos. 02CM2644 &
02CM2642)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Peter M.
Schultz, Judge.
Julia L. Bancroft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Michael A. Canzoneri and Charles
A. French, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Gomes, Acting P.J., Hill, J., and Kane, J.

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2.
On September 3, 2002, in case No. 02CM2644 appellant, David Borges Deniz,
pled no contest to possession of methamphetamine (Count 1/Health & Saf. Code, §
11377, subd. (a)) and admitted an on-bail enhancement (Pen. Code, § 12022.1). In case
No. 02CM2642, Deniz pled guilty to transportation of methamphetamine for personal use
(Health & Saf. Code, § 11379). On October 2, 2002, the court placed Deniz on
Proposition 36 probation. Following a contested hearing, on June 8, 2005, the court
found that Deniz violated his probation in both cases by possessing methamphetamine for
sale on February 1, 2005.
On July 7, 2005, the court sentenced Deniz to an aggregate term of six years eight
months. On appeal, Deniz contends 1) the court committed Blakely1 error; and 2) the
evidence is insufficient to support the court’s true findings with respect to the convictions
underlying the two aggravating circumstances the court found true. We will affirm.
FACTS
On April 22, 2002, a Kings County Sheriff’s deputy conducting a traffic stop
searched Deniz and found 5.23 grams of methamphetamine in Deniz’s pocket (case No.
02CM2642).
On May 14, 2002, a deputy stopped Deniz after receiving a complaint from a
juvenile that Deniz was bothering her. After arresting Deniz, the officer searched his car
and found a piece of aluminum foil containing .63 grams of methamphetamine (case No.
02CM2644).
On February 1, 2005, a warrant search of Deniz’s residence uncovered 364.3
grams of methamphetamine, 284.2 grams of marijuana, and $1,326.38.
Deniz’s probation report indicated that he had a lengthy record dating back to
1976 which included serving one prison term. Deniz also had two felony probation
1 Blakely v. Washington (2004) 542 U.S. 296.

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3.
violations and one parole violation and he committed several of his offenses while on
misdemeanor probation. The report cited the following as aggravating circumstances: (1)
Deniz’s convictions and juveniles adjudications were numerous and of increasing
seriousness (California Rules of Court, rule 4.421, (b)(2)),2 (2) he had served a prior
prison term (rule 4.421, (b)(3)), and (3) his prior performance on probation or parole was
unsatisfactory (rule 4.421, (b)(5)). The report also cited Deniz’s voluntary
acknowledgement of guilt at an early stage of the criminal process as a mitigating
circumstance (rule 4.423(b)(3)).
On July 7, 2005, the court found that the circumstances in aggravation outweighed
the mitigating circumstances and sentenced Deniz to an aggregate term of six years eight
months as follows: the aggravated term of four years on his transportation conviction in
case No. 02CM2642, a consecutive eight month term on his possession conviction in
case No. 02CM2644 sand a two year on bail enhancement.
In imposing the aggravated term on Deniz’s transportation conviction, the court
stated:
“[T]he Court has considered the aggravating and the mitigating
circumstances which are present and it appears that the aggravating
circumstances and Mr. Deniz’[s] prior unsatisfactory performance on
probation, and his having served a prior prison term for which no
enhancement has been pursued, outweigh the mitigating circumstances.”
DISCUSSION
The Blakely Issue
Relying on Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v.
New Jersey (2000) 530 U.S. 466 (Apprendi), Deniz now contends the trial court violated
his Sixth Amendment right to trial by jury by imposing the upper term based on factors
not admitted by Deniz or found by the jury to be true beyond a reasonable doubt.
2 All further rule references are to the California Rules of Court.

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4.
Prior to Deniz’s sentencing, the California Supreme Court undertook an extensive
analysis of these cases (and United States v. Booker (2005) 543 U.S. 220) and concluded
that the imposition of an upper term sentence, as provided under California law, was
constitutional. (People v. Black (2005) 35 Cal.4th 1238, 1244, 1254, 1261 (Black).)
Recently, however, the United States Supreme Court overruled Black in part and held
that California’s determinate sentencing law “violates Apprendi’s bright line rule: Except
for 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.’” (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856])
(Cunningham).) The middle term prescribed under California law, not the upper term, is
the relevant statutory maximum. (Ibid.)
Consistent with Cunningham, the sentencing court imposed the upper term based
upon the fact of defendant’s prior convictions, among other circumstances in aggravation.
Under well-established California law, only a single aggravating factor is required to
impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Here, the
sentencing court properly considered defendant’s 10 prior misdemeanor and 2 prior
felony convictions. Assuming the court’s consideration of the other factors was error
under Cunningham, the error was harmless under either Chapman v. California (1967)
386 U.S. 18, 24 (harmless beyond a reasonable doubt) or People v. Watson (1956) 46
Cal.2d 818, 836 (reasonable probability error did not impact the outcome.)
The Sufficiency of the Evidence Issue
Citing Shepard v. United States (2005) 544 U.S. 13, Deniz contends that the
information in the probation report and the summary of his criminal record contained
therein are insufficient to support the court’s true findings with respect to the prior
convictions underlying the aggravating circumstances it found true. Deniz is wrong.

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5.
In People v. Arbuckle (1978) 22 Cal.3d 749, the California Supreme Court stated,
“In Williams v. New York (1949) 337 U.S. 241, 251 [93 L.Ed. 1337, 1344, . . ., the
United States Supreme Court concluded that the federal due process clause does
not extend the same evidentiary protections at sentencing proceedings as exist at
the trial. A sentencing judge ‘may, consistently with the Due Process Clause of
the Fourteenth Amendment, consider responsible unsworn or “out-of-court”
information relative to the circumstances of the crime and to the convicted
person’s life and characteristics.’ [Citation.]
“More directly, several courts have held the Sixth Amendment right
of confrontation inapplicable at the sentencing stage of a criminal
prosecution. [Citations.]
“We have previously examined due process protection in the context
of probation and sentencing hearings. ‘While Williams (v. New York) does
not require the same procedural safeguards at probation hearings as in the
case of a trial on the issue of guilt, an applicant for probation is
nevertheless entitled to relief on due process grounds if the hearing
procedures are fundamentally unfair.’ [Citation.] Reliability of the
information considered by the court is the key issue in determining
fundamental fairness.” (Id. at pp. 754-755; italics added.)
Further, in People v. Black, supra, 35 Cal.4th 1238, the court stated,
“Under the determinate sentencing law, the court may rely on
aggravating facts that have not been found true by the jury. The facts
relevant to the choice of term are to be determined by the court, which ‘may
consider the record in the case, the probation officer’s report, other reports
including reports received pursuant to [Penal Code] Section 1203.3 and
statements in aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim is
deceased, and any further evidence introduced at the sentencing hearing.’
[Citation.]” (Id. at p. 1248, italics added.)
It is clear from the above authorities that the court may properly consider the
information included in defendant’s probation report and that the information it contains
can be sufficient to sustain a court’s finding with respect to prior convictions underlying
aggravating circumstances.

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6.
Shepard v. United States, supra, 544 U.S.13, does not require a contrary
conclusion. In Shepard, the United States Supreme Court had to decide whether the
defendant’s Massachusetts’s burglary convictions qualified as violent felonies within the
meaning of the Armed Career Criminal Act (ACCA), which would have raised the
defendant’s sentencing range from between 30 to 37 months to a minimum of 15 years to
life. Under Massachusetts’s law, burglary included the unlawful entry into a boat or car.
However, in Taylor v. United States (1990) 495 U.S. 575, the Supreme Court held that
only “generic burglary,” i.e., an “unlawful or unprivileged entry into, or remaining in, a
building or other structure, with intent to commit a crime” qualified as a “violent felony”
under the ACCA. (Id. at pp. 599, 602.) In Shepard, the United States Supreme Court
held that in determining whether the defendant’s Massachusetts’s burglary convictions,
which the defendant had pled to, qualified as violent felonies under the ACCA, the trial
court was limited to considering the terms of the charging documents, the terms of a plea
agreement, a transcript of the colloquy between the judge and the defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable judicial
record of this information. (Shepard v. United States, supra, 544 U.S. 13, at p. 26.)
Shepard is easily distinguishable because the issues there involved a determination
of the nature of the defendant’s four Massachusetts’s burglary convictions in order to
determine whether they qualified as convictions for violent felonies under the ACCA.
Here, the court’s finding of two aggravating circumstances did not involve a
determination of the nature of the prior convictions underlying these circumstances.
Instead, with respect to these prior convictions it simply involved a determination
whether Deniz suffered these convictions. Further, under the cases cited above, the court
could properly consider the information in the probation report in making this
determination and this information is constitutionally sufficient to sustain the court’s
findings in this regard. Accordingly, we reject Deniz’s contention that the evidence is

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7.
insufficient to sustain the court’s finding that he suffered the two prior convictions
underlying the two aggravating circumstances it found true.
DISPOSITION
The judgment is affirmed.

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