P. v. Perez

Filed 6/29/07 P. v. Perez CA5
Opn. on remand
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIO CHAVOLLA PEREZ,
Defendant and Appellant.
F048570
(Super. Ct. No. 05CM0420)
O P I N I O N
THE COURT∗
APPEAL from a judgment of the Superior Court of Kings County. Peter M.
Schultz, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson
and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P.
Farrell, Assistant Attorneys General, Stephen G. Herndon, Julie A. Hokans and Peter W.
Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
∗Before Vartabedian, Acting P.J., Wiseman, J., and Dawson, J.

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A jury convicted appellant Mario Perez of possession of methamphetamine for
purposes of sale (Health & Saf. Code, § 11378; count 1) and possession of marijuana for
purposes of sale (Health & Saf. Code, § 11359; count 2). The court imposed a prison
term of three years eight months, consisting of the three-year upper term on count 1 and a
consecutive eight-month term on count 2. The court also made various monetary orders,
including that Perez pay “$115 in penalty assessments as to each count.”
Perez appealed, arguing that (1) the imposition of the upper term violated his right
to trial by jury under the United States Constitution, and (2) the court erred in failing to
separately list, and identify the statutory bases of, the “penalty assessments” imposed.
This court rejected Perez’s first argument, relying on People v. Black (2005) 35 Cal.4th
1238, but, finding merit in his second, remanded the matter for the trial court to correct
its error.
Thereafter, in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]
(Cunningham) the United States Supreme Court found that Black was wrongly decided;
vacated our previous opinion; and remanded the matter to this court for further
consideration in light of Cunningham.
On remand, Perez renews his constitutional attack on his sentence and,
presumably, agrees with this court’s conclusion with regard to the penalty assessments
issue. We will reject Perez’s challenge to the upper term and remand the matter for the
court to correct its error with respect to the penalty assessments.
DISCUSSION1
Imposition of Upper Term
The court imposed the upper term on count 1 based on its findings of the
following two circumstances in aggravation: Perez’s performance on probation was
1 Because the facts of the instant offenses are not relevant to the issues raised on
appeal, we will forgo a recitation of those facts.

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unsatisfactory and he committed the count 1 offense while on probation. Perez argues
that because the court chose the upper term based on aggravating factors that were not
found by a jury beyond a reasonable doubt or admitted by Perez, he was denied his right
to trial by jury under the Sixth Amendment to the United States Constitution.2
In Blakely v. Washington (2004) 542 U.S. 296, 490 [124 S.Ct. 2531, 2534]
(Blakely), the United States Supreme Court held: “ ‘Other 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.’ ” (Id. at
p. 301, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 2534]
(Apprendi).) In Cunningham the United States Supreme Court held that the middle term
in California’s determinate sentencing law was the relevant statutory maximum for the
purpose of applying Blakely and Apprendi. (Cunningham, supra, 549 U.S. at p. ___ [127
S.Ct. at p. 868].) Cunningham also reaffirmed the exception enunciated in Almendarez-
Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219], and affirmed in Blakely
and Apprendi: “[T]he Federal Constitution's jury-trial guarantee proscribes a sentencing
scheme that allows a judge to impose a sentence above the statutory maximum based on a
fact, other than a prior conviction, not found by a jury or admitted by the defendant.
[Citations.]” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860, italics added;
Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at pp. 488 & 490.)
As the foregoing makes clear, the high court in Cunningham plainly recognized
the validity of imposing aggravated terms based on the fact of a prior conviction.
(Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) And in our view the
aggravating factors at issue here--Perez’s performance on probation and the fact that he
2 The People argue this contention is forfeited because Perez failed to raise it in the
trial court. We assume without deciding that Perez’s challenge to his sentence is
cognizable on this appeal.

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was on probation at the time of the instant offenses--fell within the prior-conviction
exception and therefore did not implicate Perez’s right to jury trial. We recognize that
neither of these factors is, strictly, “ ‘the fact of a prior conviction.’ ” (Blakely, supra,
542 U.S. at p. 301, italics added.) However, “[C]ourts have construed Apprendi as
requiring a jury trial except as to matters relating to ‘recidivism.’ Courts have not
described Apprendi as requiring jury trials on matters other than the precise ‘fact’ of a
prior conviction. Rather, courts have held that no jury trial right exists on matters
involving the more broadly framed issue of ‘recidivism.’ ” (People v. Thomas (2001) 91
Cal.App.4th 212, 221.) Thus, in Thomas the court held “the language … in Apprendi,
‘[o]ther than the fact of a prior conviction,’ refers broadly to recidivism enhancements
which include [Penal Code] section 667.5 prior prison term allegations.” (Id. at p. 223.)
Each of the aggravating factors at issue here presuppose a prior conviction and, in our
view, like the prior prison term enhancement, each is so closely related to recidivism that
it falls within the prior-conviction exception.
Perez contends that exception “is read very narrowly and applies only to the mere
fact of a prior conviction,” and therefore the imposition of the upper term here ran afoul
of his constitutional right to trial by jury. He bases this contention on Shepard v. United
States (2005) 544 U.S. 13 [125 S.Ct. 1254] (Shepard).
In Shepard the issue before the United States Supreme Court concerned whether
the defendant’s Massachusetts burglary convictions qualified as violent felony
convictions within the meaning of the federal Armed Career Criminal Act (ACCA) (18
U.S.C. § 924(e)). The ACCA provides for increased sentences under certain
circumstances where a defendant has suffered three violent felony convictions, and under
the ACCA, as interpreted in Taylor v. United States (1990) 495 U.S. 595 [110 S.Ct.
2143], only “generic burglary”--burglary committed in a building or an enclosed space--
is a violent felony. As our Supreme Court explained in People v. McGee (2006) 38
Cal.4th 682, 707, “In Shepard, the high court addressed whether, under the [ACCA], a

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sentencing court may look to police reports or complaint applications in determining
whether a guilty plea in an earlier criminal proceeding formed the basis for a conviction
of ‘generic’ burglary . . . . In Shepard, a majority of the high court held that ‘a later court
determining the character of an admitted burglary is generally limited to examining the
statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.’ [Citation].”
In reaching this conclusion--and rejecting the assertion that the sentencing court
properly could consider all the documents contained within the record of the prior
criminal proceeding--the majority opinion in Shepard stated, in a passage upon which
Perez relies, as follows: “While the disputed fact here can be described as a fact about a
prior conviction, it is too far removed from the conclusive significance of a prior judicial
record, and too much like the findings subject to Jones [v. United States (1999) 526 U.S.
227 [119 S.Ct. 1215]] and Apprendi, to say that Almendarez-Torres clearly authorizes a
judge to resolve the dispute. The rule of reading statutes to avoid serious risks of
unconstitutionality . . . therefore counsels us to limit the scope of judicial factfinding on
the disputed generic character of a prior plea . . . .” (Shepard, supra, 544 U.S. at p. __
[125 S.Ct. at pp. 1262-1263].)
Shepard does not assist Perez. As our Supreme Court concluded in McGee,
although the Shepard decision may suggest that a majority of the high court would view
the question of the scope of the prior-conviction exception as presenting a serious
constitutional issue, “the high court’s decision did not purport to resolve that issue.”
(People v. McGee, supra, 38 Cal.4th at p. 708.) The court in McGee held that the
defendant there was not entitled to have a jury decide whether his Nevada robbery

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convictions qualified as “strikes”3 under California law, rejecting that claim that Shepard
dictated a contrary result, concluding that that “Shepard does not provide the type of
clear resolution [of the issue of whether the prior-conviction exception extends beyond
the mere fact of the conviction] that would justify overturning the relevant California
precedents [such as Thomas].” (Ibid.) The court found it “worth noting that in the
several months following the Shepard decision, a number of federal lower courts have
reaffirmed the viability of the Almendarez-Torres exception. (See, e.g., United States v.
Reeves (8th Cir. 2005) 410 F.3d 1031, 1035, quoting United States v. Marcussen (8th Cir.
2005) 403 F.3d 982, 984 [‘We previously have rejected the argument that the nature of a
prior conviction is to be treated differently from the fact of a prior conviction’; Shepard
supports ‘the rule that the sentencing court, not a jury, must determine whether prior
convictions qualify as violent felonies’]; United States v. Williams (7th Cir. 2005) 410
F.3d 397, 402 [trial court can make findings of fact respecting criminal history, ‘be they
findings as to the fact of [a defendant’s] prior convictions or as to the nature of those
convictions,’ because Shepard ‘acknowledges the continuing validity of Almendarez-
Torres’].)” (People v. McGee, supra, at p. 708.)
As the McGee court recognized, the United States Supreme Court may, in future
decisions, extend the Blakely/Apprendi/Cunningham right to jury trial to encompass
matters related to recidivism, including, as pertinent to Perez, a court’s imposition of an
upper term sentence based on the court’s finding that the defendant was on probation at
the time of the crime and/or performed unsatisfactorily on probation. But until the
United States Supreme Court limits or abolishes the prior-conviction exception in this
3 A “strike” is a “prior felony conviction” within the meaning of the “three strikes”
law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile
adjudication that subjects a defendant to the increased punishment specified in the three
strikes law.

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manner, we are bound by the McGee decision. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
Imposition of “Penalty Assessments”
As indicated above, the court ordered Perez to pay, inter alia, “$115 in penalty
assessments as to each count.” Perez contends, and the People concede, the court erred in
failing to separately list, and identify the statutory bases of, the “penalty assessments.”
We agree.
All “fines, fees and penalties” must be stated separately at sentencing, with the
statutory basis specified for each, and the abstract of judgment must reflect these matters.
(People v. High (2004) 119 Cal.App.4th 1192, 1201.) As the court in High stated,
“Although we recognize that a detailed recitation of all the fees, fines and penalties on the
record may be tedious, California law does not authorize shortcuts. All fines and fees
must be set forth in the abstract of judgment.” (Id. at p. 1200.)
DISPOSITION
The matter is remanded for the trial court to separately list, with the statutory
basis, all fines, fees, and penalties imposed. An amended abstract of judgment shall be
prepared and forwarded to the appropriate authorities. In all other respects, the judgment
is affirmed.

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