P. v. Beckham

Filed 12/10/07 P. v. Beckham CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT L. BECKHAM,
Defendant and Appellant.
B193050
(Los Angeles County
Super. Ct. No. BA292953)
APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S.
Rubin, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E.
Winters, Supervising Deputy Attorney General, Viet H. Nguyen, Deputy Attorney
General, for Plaintiff and Respondent.

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INTRODUCTION
A jury convicted defendant and appellant Robert I. Beckham (defendant) of
unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) and hit and run
driving (Veh. Code, § 20002, subd. (a)). The trial court sentenced defendant to the upper
term of three years in state prison for his unlawful driving or taking of a vehicle
conviction and a consecutive six-month term in county jail for his hit and run driving
conviction. On appeal, defendant contends that the trial court’s imposition of the upper
term sentence based on facts not found true beyond a reasonable doubt by a jury violates
his right to a jury trial under the Sixth Amendment to the United States Constitution and
his right to due process under the Fourteenth Amendment to the United States
Constitution as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and
Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We
affirm defendant’s judgment of conviction and sentence.
BACKGROUND
Defendant rented a Chrysler Sebring from Alamo Car Rental in Inglewood from
July 22, 2005, until July 25, 2005. Defendant was to return the car by 11:00 p.m. on July
25, 2005. During the afternoon on July 25, 2005, defendant exchanged the rental car for
another Chrysler Sebring. The license plate of the second Sebring was 5LED801.
Defendant did not extend the rental period, and the second car was due back at Alamo at
11:00 p.m. on July 25, 2005.
Defendant did not return the rental car on July 25, 2005. On July 28, 2005, an
Alamo employee called defendant’s telephone number and left a voicemail message.
Shortly thereafter, a person telephoned Alamo and told a manager that the car would be
returned that day. The car was not returned that day. Alamo sent defendant letters at the
end of July and beginning of August 2005 demanding the return of the rental car. On
September 14, 2005, Alamo reported the rental car stolen to the police.
At about 5:30 p.m., on November 4, 2005, Los Angeles Police Department
Sergeant Chris Ramirez spotted defendant driving the Sebring, license plate number

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5LED801, that Alamo had reported stolen. Sergeant Ramirez pulled in behind defendant.
Defendant drove through a stop sign and accelerated. Sergeant Ramirez activated his
lights and siren. Defendant drove through two additional stops signs. When defendant
drove through a fourth stop sign, he collided with a vehicle driving in cross traffic. The
Sebring spun out of control and crashed into parked cars.
When Sergeant Ramirez arrived at the accident scene, the Sebring was “mangled,”
and defendant was not inside. A witness informed Sergeant Ramirez that defendant had
run toward two nearby houses. The police established a perimeter. A K-9 unit was
called, and defendant was found shortly thereafter. A police officer searched the Sebring
and found a brown paper bag on the center console that contained a photograph of
defendant. The car had suffered extensive damage. Alamo spent about $24,000 to repair
the rental car.
DISCUSSION
Defendant’s Blakely/Cunningham Claim
Defendant contends that the trial court’s imposition of the upper term sentence
based on facts not found true beyond a reasonable doubt by a jury violates his right to a
jury trial under the Sixth Amendment to the United States Constitution and his right to
due process under the Fourteenth Amendment to the United States Constitution. We
disagree.
In Cunningham, the United States Supreme Court held that California’s
determinate sentencing law violated the Sixth Amendment insofar as it authorized trial
judges, rather than juries, to make factual findings that expose defendants to upper term
sentences. (Cunningham, supra, 127 S.Ct. at pp. 868-871.) Following Cunningham, in
People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that
“so 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

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mitigating circumstances, regardless of whether the facts underlying those circumstances
have been found to be true by a jury.” (Id. at p. 813.) Further, “[u]nder California’s
determinate sentencing system, the existence of a single aggravating circumstance is
legally sufficient to make the defendant eligible for the upper term. [Citation.]
Therefore, if one aggravating circumstance has been established in accordance with the
constitutional requirements . . . the upper term sentence is the ‘statutory maximum.’ ”
(Ibid.)
The Sixth Amendment does not confer a right to a jury trial on either “the fact that
a prior conviction occurred” or “other related issues that may be determined by
examining the records of the prior convictions” (Black, supra, 41 Cal.4th at p. 819),
including “whether a defendant has suffered prior convictions, and whether those
convictions are ‘numerous or of increasing seriousness’” within the meaning of
California Rules of Court, rule 4.421(b)(2). (Id. at pp. 819-820; see also Almendarez-
Torres v. United States (1998) 523 U.S. 224, 239-247.) Furthermore, although California
law requires proof beyond a reasonable doubt of alleged prior convictions used to justify
a recidivist sentence (see, e.g., People v. Bowden (2002) 102 Cal.App.4th 387, 392-393,
125 Cal.Rptr.2d 513), facts relating to prior convictions found to be aggravating
circumstances for purposes of imposing an upper-term sentence are not subject to proof
beyond a reasonable doubt, but may be found by a preponderance of the evidence.
(Black, supra, 41 Cal.4th at p. 820, fn. 9.) Accordingly, as the Supreme Court concluded
in Black, “imposition of the upper term does not infringe upon the defendant’s
constitutional right to jury trial so long as one legally sufficient aggravating circumstance
has been found to exist by the jury, has been admitted by the defendant, or is justified
based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Among the facts
a trial court is permitted to find under Black in connection with a defendant’s “prior
conviction” is whether the defendant served a prior prison term. (Id. at p. 819 [citing
People v. Thomas (2001) 91 Cal.App.4th 212, 220-223 for the proposition that “the
exception recognized in Apprendi [v. New Jersey (2000) 530 U.S. 466] for ‘“the fact of a

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prior conviction’” permits a trial court to decide whether a defendant has served a prior
prison term”].)
In sentencing defendant to the upper term, the trial court found the following
circumstances in aggravation: the manner in which the crime was carried out indicated
planning, sophistication, or professionalism; the crime involved the actual taking or
damage of great monetary value; defendant had engaged in a pattern of conduct that
indicated a serious danger to society; defendant had served prior prison terms; and
defendant’s performance on probation or parole was unsatisfactory. The trial court found
no circumstances in mitigation.
Defendant contends that the trial court based defendant’s upper term sentence on
its own factual findings of multiple non-recidivist aggravating circumstances. Defendant
improperly includes among these “non-recidivist” aggravating circumstances the
circumstance that defendant served a prior prison term. A trial court properly may find,
on its own, the fact that a defendant has served a prior prison term. (Black, supra, 41
Cal.4th at pp. 818-819.) Thus, defendant’s criminal history made him eligible for the
upper term. (Ibid.) Once defendant was eligible for the upper term, the trial court was
entitled to consider all of the factors it relied on in sentencing defendant to the upper
term. (Id. at p. 813.)
Defendant also contends that Black, supra, 41 Cal.4th 799 was wrongly decided.
As defendant acknowledges, however, we are bound by that decision. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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DISPOSITION
The judgment of conviction and sentence are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.

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