Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR185598
Pollak, J.
Defendant Russell Elijah Edwards was convicted by a jury of corporal injury and battery to a spouse with findings that he used a deadly weapon and caused great bodily injury based on one incident in which he punched his wife and a second in which he punched and hit her with a baseball bat. The court sentenced defendant to the upper terms for both corporal injury to a spouse and for the great bodily injury enhancement, totaling nine years, plus an additional one year for the use of a deadly weapon (while staying imposition of other portions of the sentence). Defendant appeals, arguing that imposition of the upper terms violated his right to a jury trial, was a prohibited ex post facto application of amendments to the sentencing provisions of the Penal Code, and that the court improperly used the same facts to impose the upper terms for the substantive count and for the enhancement. Defendant concedes that the constitutional arguments have been addressed and rejected by the California Supreme Court, but sets them forth to preserve the issues for federal review. We reject additional contentions concerning the dual use of sentencing factors except with respect to the imposition of the one-year enhancement for use of a deadly weapon. We therefore shall strike the one-year enhancement and otherwise affirm the judgment.
Background
There was substantial evidence of the following facts at trial. The victim, V.E., testified that she had been married to defendant for 14 years, but at the time of the incident they had separated and he was living in Vallejo, sometimes with his mother. On May 4, 2006, she was in an automobile accident. She was taken to the hospital, but was released and defendant picked her up from the hospital. On that day they had an appointment to meet with an attorney, but V.E. did not want to go because she was feeling ill from the accident. They argued and defendant grabbed V.E.’s phone and purse, then punched her in the face multiple times. V.E. testified that “somehow I was able to get out of the car and I ran to some lady’s house. I didn’t know her. [¶] Q.... [¶] A. I just told her that me and my husband had got into a fight, and so she called 911.” V.E. sustained a black eye as a result of defendant’s punch.
On August 12, 2006, defendant purchased some clothes for their son and made arrangements for V.E. to pick up the clothes at his mother’s house. V.E. went to the house where she retrieved the clothing. As she was leaving, defendant asked her to go to dinner with him and to a hotel. V.E. refused, and defendant began to beat her with his fists “[a]ll over.” V.E. was screaming. Defendant knocked her to the ground and continued to hit her head and face. He stopped and drove away but returned a short time later with an aluminum baseball bat and began hitting her with it, on “my head, and all over my body.” The next thing V.E. remembered was being moved into an ambulance. She was admitted to the hospital where, among other things, her head was shaved and staples placed in it, and her face was stitched. V.E. testified that she had difficulty remembering events that had taken place between May and August of 2006 because of the trauma sustained in August.
Several other witnesses—neighbors and law enforcement personnel—confirmed and elaborated on the circumstances of the two incidents and the injuries that V.E. sustained. Defendant testified, confirming his involvement in the two incidents but describing them very differently.
Defendant testified that the May 4 incident occurred while he was driving V.E. to her mother’s home and was triggered by his “snatch[ing]” V.E.’s purse to get her car keys and prevent her from later driving, followed by V.E. hitting him, grabbing the steering wheel and almost causing a collision. If he inflicted a black eye on V.E., “that was an accident that day, to try to keep her from grabbing the steering wheel, to keep us from having an accident.”
Defendant was charged by information with several offenses arising out of the two incidents. The August 12 incident was the subject of count 1, attempted murder (Pen. Code, §§ 187, subd. (a), 664), count 2, corporal injury to a spouse (§ 273.5, subd. (a)), and count 3, assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1)). Counts 1 and 2 included the special allegation that defendant used a deadly weapon in the commission of the offenses. (§ 12022, subd. (b)(1).) Counts 1, 2 and 3 also alleged that defendant inflicted great bodily injury within the meaning of section 12022.7, subdivision (e). The May 4 incident was the subject of count 4, corporal injury to a spouse (§ 273.5, subd. (a)), and count 5, misdemeanor interference with a wireless communication device (§ 591.5). It was further alleged that defendant was on bail in two other pending criminal matters when he committed these crimes.
Further statutory references are to the Penal Code.
The court dismissed count 5 and a jury trial was held on the remaining counts. The jury found defendant not guilty of attempted murder, but guilty of count 2 for the August 12 corporal injury to a spouse and count 3, assault with a deadly weapon, and found true the use of a deadly weapon allegation (count 2) and the great bodily injury allegation (counts 2 and 3). On count 4, the jury found defendant not guilty of the May 4 corporal injury to a spouse, but guilty of the lesser included offense of battery against a spouse (§ 243, subd. (e)(1)).
The record does not reflect a verdict for the allegations that the crimes were committed while defendant was on bail.
Sentence was imposed on July 17, 2008, well after the March 30, 2007 effective date of amendments to the sentencing provisions in section 1170. The court sentenced defendant to 10 years’ imprisonment, consisting of the upper term of four years on count 2 for corporal injury to a spouse, plus the upper term of five years for the great bodily injury enhancement and one year for use of a deadly weapon. On count 3 the court imposed but stayed the aggravated term of four years for assault with a deadly weapon and five years for the great bodily injury enhancement. Finally, under count 4 the court ordered defendant to serve 180 days for the misdemeanor battery against a spouse, to run concurrently with the other sentence. Defendant was ordered to pay a restitution fine of $4,000, which was stayed pending successful completion of parole. Defendant timely filed a notice of appeal.
Discussion
On appeal, defendant challenges only his sentence. He argues that imposition of the upper terms for the principal offenses and the enhancements without admissions or jury findings on factors in aggravation violated his Sixth Amendment right to a jury trial, and that applying the revised provisions of section 1170 to offenses that predated the amendments to section 1170 violated the due process and ex post facto provisions of the federal Constitution. Defendant acknowledges that these arguments have been conclusively decided against him by our Supreme Court (People v. Sandoval (2007) 41 Cal.4th 825), but sets them forth to preserve his contentions for federal review. We of course are bound by the decisions of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and see no reason to elaborate on these arguments here. However, defendant also contends that the sentence imposed by the trial court violates the proscription against the dual use of sentencing factors. We shall therefore review in greater detail the basis on which defendant’s sentence was imposed.
Defendant likens this case to People v. Hamlin (2009) 170 Cal.App.4th 1412, in which the Court of Appeal remanded for resentencing where the defendant had been sentenced to the upper term for each of three counts of corporal injury to a spouse. Sentencing in that case occurred prior to the amendments to section 1170 that allow the trial court broad discretion in choosing between the three statutorily prescribed terms. Moreover, the trial court there noted that defendant had no prior criminal history and relied on other aggravating factors including that “defendant ‘engaged in violent conduct, indicating [he is] a serious danger to society.’ ” (Id. at p. 1470.) The appellate court rejected the argument that imposition of the high term was justified despite the defendant’s lack of criminal history because a jury would have found beyond a reasonable doubt that defendant engaged in violent conduct. The court stated “It is beyond contradiction that in inflicting corporal injury on [the victim], defendant engaged in violent conduct. However, ‘To the extent that violence does not exceed the force necessary to consummate the crime(s), it may not be used to aggravate the base term.’ ” (Id. at p. 1472.) The appellate court could not conclude that a jury would have made such a finding beyond a reasonable doubt and therefore remanded. The present case is distinguishable because as discussed in text below, the imposition of the upper term on both the substantive offense and the great bodily injury allegation was justified by defendant’s prior convictions regardless of other aggravating factors upon which the court may have relied.
The probation report stated that in an interview “defendant admitted to hitting the victim with his hands and he said he was not proud of it. However, he denied slapping the victim and striking her with the bat. He claimed he was only ‘faking’ the motion of hitting her with the bat upon being confronted with the witness and deputy’s observations. He did not acknowledge the degree of the victim’s bodily injuries and he suggested the victim hit her head on the ground as an explanation. He added that the victim took blood thinning medication which makes her easily bruise and he thought her bruises also resulted from them ‘rolling around’ in the field. [¶] The defendant did not think he should have been convicted of the assault with a deadly weapon while further commenting on the inconsistency of the victim and witnesses’ statements.... [¶] The defendant spent considerable time highlighting his character and community service work. He mentioned how he reportedly worked with at risk youth and advocated against violence. He mentioned on his experience in ministry since 1989 and he commented on how he taught Sunday school. He considered himself to be [a] faithful church member who helped society. He summed up the current matter as being a ‘bad moment’ and he expressed how very lonely he has been without his family.”
The probation report noted that defendant had a juvenile adjudication for robbery and “an extensive criminal record” as an adult, including convictions for grand theft, possession of marijuana, possession of a controlled substance, possession of a controlled substance for sale, battery, assault with a deadly weapon, first degree burglary, and disturbing the peace. The report also stated that “defendant’s prior performance on probation was unsatisfactory, in that he reoffended and he was ultimately sentenced to prison upon additional convictions. While on parole, he was repeatedly returned to the custody of [California Rehabilitation Center (CRC)] and eventually discharged.” The report recommended that defendant be sentenced to the high term “due to the preponderance of aggravating factors.”
The trial court imposed the upper term on count 2, stating, “For the violation of Penal Code section 273.5, the court is going to impose the high term of four years, and I’m going to impose that term based on the fact that this was—well, first of all, the defendant has numerous prior felony convictions, some of which were set aside pursuant to 1203.4, when the defendant had successfully completed the CRC program, but there was still at least two others, and I think it was three that had not been set aside. He’s had a record of violence since he was a teenager. He had a robbery conviction as a juvenile. As I previously mentioned, he had this other unprovoked assault upon the victim, after she had been in an automobile accident... a couple of months before this. And I do feel that the defendant[’s]... testimony on the stand was totally self-serving, and I think it defied everyone else’s perceptions of what was occurring. Plus, it just didn’t make sense, that you would take a bat to threaten someone, who already had the hell beat out of them, and was lying there nearly unconscious. Why would you need a bat to threaten them at that point? It just makes no sense. I think at that particular time, Mr. Edwards was bent on wreaking great bodily injury, if not death, on this victim. And had it not been for the arrival of the police officer, who arrived just as this beating was in progress, I think we could have easily been dealing with a 187 charge here, rather than what we dealt with, so I think the high term is appropriate.”
Section 1203.4 permits a criminal defendant who “has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section” to withdraw a plea of guilty or nolo contendere and provides that the court shall then dismiss the complaint or information.
The court continued, “[F]or the great bodily injury, as found by the jury, pursuant to 12022.7(e), I am also going to select the high term. These are probation’s recommendations. I do agree with them. Again, as I indicated before, had the deputy not arrived,... I don’t know when it would have stopped. It was clearly not stopping before the deputy arrived. I think also it’s significant to note, as probation has, that in the presentence interview the defendant expressed no remorse. He had denied striking her. He didn’t have any insight or appreciation of her injuries. And as probation pointed out, his focus was basically on offering other explanations for what may have caused these injuries, rather than the violence that he inflicted on her. He’s viewed by probation as a significant risk to reoffend, and I don’t disagree with that. And I base that, in part, on the fact that after the first offense, he went out and did this, and he set this whole thing up. He called the victim to come over. He told her when he called her that he wasn’t going to be around, and then he was not only around, but he brought the bat to the party, and used it just as he indicated previously to the victim, he was going to use it to inflict great bodily injury.... So I think the ten-year term is justified by all of the circumstances in this case, and the aggregate term, four-year—high term,... and the five-year term for the great bodily injury, plus the one year additional term for the use of the bat is ten years.... With regard to count 3, I’m going to impose the same term, which is four years, the high term, for a violation of 245(a)(1). One year for the use of the deadly weapon, and five years for the infliction of great bodily injury. This term will be stayed pursuant to 654.”
Defendant argues that imposition of the upper term for corporal injury to a spouse and for the great bodily injury enhancement was a prohibited “dual use” of facts. He argues that “it appears the trial court imposed upper-term sentences for both the great bodily injury enhancement and the underlying offense based, in part, on the severity of the injuries V.E. sustained.” He also argues that the trial court imposed the upper term for corporal injury to a spouse in part because he used a weapon in the commission of the crime and impermissibly imposed an additional one-year enhancement for use of the weapon.
The Attorney General contends that this argument was waived for failure to raise it in the trial court. However, defendant filed a written sentencing memorandum that explicitly raised this argument.
Section 1170, subdivision (b) provides in part that “the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” However, “a trial court may use the same fact(s) to impose more than one aggravated term provided the fact is reasonably related to the particular count and is otherwise available.” (People v. Price (1984) 151 Cal.App.3d 803, 812.)
In People v. Moberly (2009) 176 Cal.App.4th 1191, 1198, the court concluded that “the dual use of a fact or facts to aggravate both a base term and the sentence on an enhancement is not prohibited. We draw this conclusion by comparison with cases recognizing there is no prohibition on the dual use of facts to impose more than one aggravated term. [Citations.] In People v. Price[ supra, ]151 Cal.App.3d 803, the trial court sentenced the defendant to the upper term on each of four fully consecutive counts in a sex crimes case. It used the same set of aggravating circumstances both to make the choice to sentence consecutively and to impose the upper terms on all of the counts. While the appellate court found that the trial court violated the dual use prohibition by using the same facts to select upper terms and sentence consecutively, it found no error in the dual use of facts to select the upper term on the four different counts. (Price, supra, at pp. 812, 815-816.) This use of the same facts—to impose the aggravated sentence on multiple, consecutive terms—is for present purposes similar to use of the same fact or facts to impose the aggravated sentence on a single offense and on its accompanying, consecutive enhancement. Appellant provides no rationale for distinguishing the situations, and we find no principled distinction exists.” (176 Cal.App.4th at p. 1198, fns. omitted.)
Defendant contends that the trial court relied improperly on the violent nature of the crime, the extent of the injuries inflicted on the victim, and the use of a weapon to impose the upper terms. Because the trial court imposed sentences for the great-bodily-injury and use-of-a-weapon enhancements, defendant argues, it could not rely on the violence inherent in the crime or the use of a weapon to choose the aggravated term for the substantive offense. In imposing the sentence, the trial court certainly referred to these factors. However, in selecting the upper term for the substantive offense, the trial court explicitly relied on defendant’s criminal history, which independently is sufficient to authorize selection of the upper term regardless of any other factors the court may have considered. (People v. Sandoval, supra, 41 Cal.4th at p. 838.) Although the court did not expressly refer to this factor again when explaining its decision to impose the upper term for the great-bodily-injury enhancement, the totality of the court’s remarks indicate that the court undoubtedly took defendant’s recidivism into account in choosing the upper term for the enhancement. In any event, the trial court gave other valid reasons for imposing the high term, including “that in the presentence interview the defendant expressed no remorse. He had denied striking her. He didn’t have any insight or appreciation of her injuries. And as probation pointed out, his focus was basically on offering other explanations for what may have caused these injuries, rather than the violence that he inflicted on her. He’s viewed by probation as a significant risk to reoffend, and I don’t disagree with that.” (See Cal. Rules of Court, rules 4.421(b)(1), 4.408.) These factors, as well as defendant’s criminal history, were not elements of either of the enhancements.
We asked the parties for additional briefing to address whether the trial court erred in imposing the upper term for the great-bodily-injury enhancement and imposing an additional one year for the use of a weapon since defendant used the weapon to inflict the injury. In Price, the trial court held that “where a weapon is used in each of several violent sex offenses, the trial court need not impose the enhancement to each conviction and may not so impose an enhancement if the weapon use is utilized for aggravation purposes.” (People v. Price, supra, 151 Cal.App.3d at p. 809, italics added.) In that case, the defendant used a knife to threaten the victim of his sexual assault. The appellate court held that the threat of great bodily injury was a valid aggravating factor, but “to the extent the threat was based on appellant’s knife use, this factor could not be used as to count one where a knife use enhancement was imposed.” (Id. at p. 814.)
The issue here is not whether separate enhancements may be imposed for use of a weapon and for causing great bodily injury with that weapon. They may. (See § 1170.1, subds. (f) & (g); see also People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1737.) The issue is whether the court, relying in part on the weapon use, may impose the upper term for the substantive offense and for causing great bodily injury and also impose a separate term for the enhancement of using the weapon. Since “the weapon use [was] utilized for aggravation purposes” (People v. Price, supra, 151 Cal.App.3d at p. 809), a separate enhancement may not be imposed for use of that weapon.
Hence, while we conclude that there was no error in sentencing defendant to consecutive upper terms for both corporal injury to a spouse and the infliction of great bodily injury, the additional one year term for use of a deadly weapon must be stricken..
Disposition
The matter is remanded for correction of the sentence as set forth above. In all other respects the judgment is affirmed.
We concur: McGuiness, P. J. Siggins, J.
The August 12 incident began when he “went to kiss [V.E.] goodbye, and she just kind of, you know, it wasn’t like aggressive, but she just pushed me back a little bit. [¶] Q.... [¶] A. I just lost it, and started hitting her. [¶] Q.... [¶] A. I don’t know how many times it was, but I just started slapping her and hitting her.” “I was hitting her in her face, and I was hitting her on her head and, you know, just all over her body and everywhere.” He pushed her to the ground and “I just kept hitting her, and we were both screaming.” He saw blood “all over the side of her face, and it was coming like out of her head, and there was just blood everywhere.” He got the bat intending to break the windows of the truck in which V.E. had been driving and although he “may have... made a motion to go down like this (indicating), but I never hit her with the bat.” He stopped swinging the bat when a sheriff’s deputy arrived.