 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Farnham10/13/2004
*1 Defendant Christopher John Farnham entered a negotiated plea of no contest to driving under the influence of alcohol (DUI) (Veh.Code, § 23152, subd. (a)) and admitted having two prior DUI convictions (Veh.Code, §§ 23550, 23550.5). In exchange, a count of driving with 0.08 percent or greater blood-alcohol level (Veh.Code, § 23152, subd. (b)) and a prior prison term allegation (Pen.Code, § 667.5, subd. (b)) were dismissed. He was sentenced to state prison for the upper term of three years, was awarded 80 days of custody credit and 40 days of conduct credit, and was ordered to pay a $400 attorney fee, a $600 restitution fine (Pen.Code, § 1202.4) and a $600 restitution fine suspended unless parole is revoked (Pen.Code, § 1202.45).
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
We requested, and received, supplemental briefing regarding imposition of the upper term in light of the recent decision in Blakely v. Washington (2004) 542 U.S. ---- [159 L.Ed.2d 403] (hereafter Blakely ).
Applying the Sixth Amendment, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi ) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury's verdict or admitted by the defendant. Thus, when a sentencing court's authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at p. ---- [159 L.Ed.2d at pp. 413-414].)
Here, the trial court stated it was imposing the upper term because "defendant's prior [convictions] are numerous. He has served a prior prison term. He was on parole at the time of the crime. His prior performance on parole has been unsatisfactory, and the Court notes that although he said he had one beer at the time of this incident, he was tested, and his blood alcohol was .25 [percent] at the time that it was tested."
Relying on Apprendi and Blakely, defendant claims the trial court erred in imposing the upper term because "[n]one of these findings [was] based on facts encompassed within [his] ... plea."
The contention fails. One of the reasons the trial court gave for imposing the upper term is defendant's prior criminal convictions. (Cal. Rules of Court, rule 4.421(b)(2).) As we have noted, the rule of Apprendi and Blakely does not apply to a prior conviction used to increase the penalty for a crime. Since one valid factor in aggravation is sufficient to expose defendant to the upper term (People v. Cruz (1995) 38 Cal.App.4th 427, 433), the trial court's consideration of other factors, in addition to the prior convictions, in deciding whether to impose the upper term did not violate the rule of Apprendi and Blakely.
*2 Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
Page 1 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|