Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside CountySuper.Ct.No. RIF122474, Robert W. Armstrong, Judge. (Retired Judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
King, J.
A jury convicted defendant of first degree robbery (count 5—Pen. Code, § 211), first degree burglary (count 6—Pen. Code, § 459), unlawful taking of a vehicle (count 3—Veh. Code, § 10851, subd. (a)), receiving a stolen vehicle (count 4—Veh. Code, § 496d, subd. (a)), criminal threats (count 2—Pen. Code, § 422), and simple misdemeanor assault as a lesser-included offense of assault with a firearm (count 7—Pen. Code, § 240). The jury additionally found true allegations that defendant had personally used a firearm in counts 5 and 6. (Pen. Code, §§ 12022.5, subd. (a), 1192.7, subd. (c)(8).) After a bifurcated proceeding, the trial court found true allegations that defendant had suffered three prior prison terms (Pen. Code, § 667.5, subd. (b)), one prior serious felony conviction (Pen. Code, § 667, subd. (a)), and one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)). The court imposed an aggregate prison sentence of 29 years 8 months consisting of the following: (1) the upper term of six years on the principle count, count 5, doubled pursuant to the strike prior; (2) 10 years consecutive for the personal use enhancement on count 5; (3) the upper term of six years on count 6, doubled pursuant to the strike prior, stayed pursuant to Penal Code section 654; (4) 10 years stayed for the personal use enhancement on count 6; (5) one-third the midterm of two years, doubled, consecutive on count 3; (6) one-third the midterm of two years, doubled, concurrent on count 4; (7) one-third the midterm of two years, doubled, consecutive on count 2; (8) six months concurrent on count 7; (9) five years consecutive for the prior serious felony; and (10) one year each for the three prior prison terms, stayed. On appeal, defendant contends the trial court violated his Sixth Amendment (U.S. Const., 6th Amend.) right, via the Fourteenth Amendment (U.S. Const., 14th Amend.), to a jury trial finding on those factors it used in justifying imposition of the upper term on count 5. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).) However, defendant’s prior conviction record reveals at least one aggravating circumstance, not used as an enhancement, which rendered him eligible for an upper term sentence. Therefore, the trial court acted appropriately in imposing the aggravated term. Defendant further maintains the court erred in not staying imposition of sentence on count 4 pursuant to Penal Code section 654 and in not striking sentence on his three prior prison terms. We agree with defendant’s latter claims and, therefore, order imposition of sentence on count 4 stayed and order the three prior prison term enhancements stricken. In all other respects, the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
In actuality, the trial court did not mention count 4 at all during sentencing. However, both the minute order for that date and the abstract of judgment show such an imposition of sentence on that count. Likewise, this would be the only possible determination in order to meet the court’s orally pronounced aggregate sentence of 29 years 8 months.
I. FACTS AND PROCEDURAL HISTORY
Between March 12 and 14, 2005, defendant and Corina Pendergrass engaged in what defense counsel below referred to as “a little crime spree.” Sometime after 5:00 p.m. on March 12, 2005, defendant, Pendergrass, and Pendergrass’s sister went over to victim Reina Briganti’s apartment. Without permission, Pendergrass’s sister retrieved the keys to Briganti’s vehicle. The three drove off in the car with Pendergrass behind the wheel. Over the course of the weekend, defendant also drove the vehicle.
Around midnight on March 13, 2005, defendant and Pendergrass entered the apartment of Julio Hernandez without permission. Hernandez told them to get out, but they refused. Defendant and Pendergrass began trashing Hernandez’s apartment. Defendant lifted his shirt in order to reveal a handgun to Hernandez. Hernandez ran into his bedroom. Defendant and Pendergrass followed him into the bedroom where Pendergrass went through Hernandez’s pockets and both individuals beat him, knocking him to the ground. They left with Hernandez’s wallet and money. Hernandez ran after them demanding his possessions back. Defendant came back and threatened to kill Hernandez if he reported the incident.
Deah Cagle has a daughter with defendant. On March 14, 2005, between 1:00 and 2:00 a.m., she received a phone call from defendant during which he requested to see his daughter. She refused, after which he threatened to kill her. Later that afternoon, defendant called again, reiterating his request. Cagle, again, declined his demand. Defendant responded, “All you guys are going to die.”
That evening, Cagle’s live-in girlfriend, Amanda Worsham, was driving home from work. Briganti’s vehicle, in which defendant was riding, pulled up alongside her and then swerved in front of her, cutting her off. Defendant climbed through the backseat driver’s side window and pointed a gun at Worsham, motioning three times as if he were firing the weapon. Worsham and Cagle called the police that night and reported both defendant’s threatening phone calls and the incident in the vehicle. Police arrested defendant later that evening.
II. DISCUSSION
A. Imposition of the Upper Term Was Proper
Defendant claims the trial court erred in imposing the upper term on count 5 and that the matter must be remanded for resentencing in light of the United States Supreme Court’s recent decision in Cunningham (imposition of upper term sentence based on facts found by judge under California’s determinate sentencing law (DSL) violates Sixth and Fourteenth Amendment right to jury trial). For the reasons explained below, we conclude that the trial court’s imposition of the upper term was proper.
“[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.” (Cunningham, supra, 127 S.Ct. at p. 860.) In Cunningham, the United States Supreme Court held that by placing sentence-elevating factfinding within the trial judge’s province, California’s DSL violates a criminal defendant’s right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, supra, at p. 860.) The Cunningham court explained that because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the California DSL violates the bright-line rule in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) that any fact, other than the fact of a prior conviction, 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, supra, at p. 868.) Quoting Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) for the proposition that “‘[t]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,’” the Cunningham court concluded that “[i]n accord with Blakely, therefore, the middle term prescribed in California statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, at p. 868.)
However, Cunningham did reaffirm the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi that “[e]xcept 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.’ [Citation.]” (Cunningham, supra, 127 S.Ct. at p. 868, italics added, quoting Apprendi, supra, 530 U.S. at p. 490.) The Almendarez-Torres/Apprendi exception is sufficiently broad to encompass all matters ascertainable from the face of the prior judgment of conviction. (People v. Black (2007) 41 Cal.4th 799, 818-820 (Black II); People v. McGee (2006) 38 Cal.4th 682, 707-709; People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) The United States Constitution does not mandate a jury trial on prior convictions, and any right to a jury trial would be purely statutory. (Apprendi, supra, at pp. 487-490; People v. Epps (2001) 25 Cal.4th 19, 23; see § 1025.) By statute in California, a defendant is afforded a jury trial only as to the fact of those prior convictions alleged in the accusatory pleading as statutory sentence enhancements. (§ 1025; People v. Epps, supra, at pp. 29-30.) Prior convictions considered as aggravating factors for the purpose of imposing the upper term may be determined by the court upon facts shown in the probation report and need be established only by a preponderance of the evidence. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, at p. 812.)
Here, as shown in the probation report, defendant had a prior criminal record which included seven adult convictions, five of which were felonies. Even excepting the three prior felony convictions which were used as section 667.5, subdivision (b) enhancements, and the one additional conviction which was used as prior strike and prior serious felony conviction enhancements, the trial court still had before it defendant’s sole remaining prior felony conviction. The court indicated that it could not find any mitigating factors: “And so I’m back to the probation report where they list all of these factors in aggravation and find none in mitigation. And I’m hard pressed to find anything in mitigation.” It reiterated: “So I cannot find that there are mitigating factors that outweigh the aggravating factors, and therefore, I do feel the high-based term is the appropriate one, and the Court imposes the high-based term on the [section] 211.” In summarizing its imposition of sentence, the court noted that it took “no pleasure in imposing such severe sentences, but when the crime is done and the prior—and the prior conduct is such as it is here, there just isn’t too much choice for the Court to exercise discretion.” Therefore, the trial court had before it at least a single aggravating factor for which imposition of the upper term was proper.
Defendant’s contention that Black II was incorrectly decided and, ultimately, will be overruled by the United States Supreme Court is purely speculative and does not provide this court with authority to disregard it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, we disagree that Black II is in contradiction with Cunningham. Rather, Black II expressly implements the California Supreme Court’s interpretation of Cunningham. And, Auto Equity Sales, Inc. requires that appellate courts follow the precedent established by the California Supreme Court: “The decisions of this court are binding upon and must be followed by all the state courts of California.” (Auto Equity Sales, Inc. v. Superior Court, supra, at p. 455.) Finally, the court in People v. Sandoval (2007) 41 Cal.4th 825 also recognized that Cunningham and its forbears exempted application of “the right to jury trial and the requirement of proof beyond a reasonable doubt . . . to the [determination of an] aggravating fact of a prior conviction.” (People v. Sandoval, supra, at pp. 836-837.) In that case, unlike the present case, none of the factors the trial court used in justifying imposition of the upper terms were based on the defendant’s prior record of conviction. (Id. at pp. 837-838.) Indeed, the defendant had no record of prior conviction. (Ibid.) Contrary to defendant’s contention, nothing in Sandoval prohibits the “qualitative evaluation” of aggravating factors by the trial court so long as at least one eligibility factor may be found. (Black II, supra, 41 Cal.4th at p. 812.) Here, as discussed above, at least one eligible aggravating factor existed which justified imposition of the upper term.
B. Imposition of Sentence on Count 4 Must Be Stayed Because Section 654 Bars the Dual Punishment of Indivisible Conduct
“Section 654 reads: ‘An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .’ Although section 654 speaks in terms of an ‘act or omission,’ it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.] The key inquiry is whether the objective and intent attending more than one crime committed during a continuous course of conduct was the same. [Citation.] ‘[I]f all of the offenses were merely incident to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored “multiple criminal objectives,” which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, “even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.”’ [Citation.]” (People v. Meeks (2004) 123 Cal.App.4th 695, 703-704.)
A defendant’s intent and objective are factual matters for the trial court to determine. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) We must affirm the sentence if substantial evidence supports a trial court’s determination that a defendant entertained multiple objectives in the commission of crimes occurring during a single course of conduct. (Ibid.) “Where section 654 precludes multiple punishment and the trial court erroneously sentences on all counts, the appellate court must stay the effect of the lesser offense(s) in order to comply with section 654 while permitting execution of the greater offense consistent with the intent of the sentencing court. Under such circumstances, the appellate court can logically presume that where the trial court sentences on all counts, the court meant to impose sentence at least on the most serious.” (People v. Bradley (1981) 115 Cal.App.3d 744, 753.)
Here, both in its sentencing memorandum and at the sentencing hearing, the People conceded that punishment could not be imposed for both counts 3 and 4 due to section 654’s prohibition against multiple punishment. Defendant, likewise, contended below that the court could not impose sentence on both counts. Indeed, as noted above, the court did not orally pronounce sentence on count 4 at all. However, implementation of a concurrent sentence on count 4 appears in the sentencing minute order and in the abstract of judgment. On appeal, the People concede that imposition of sentence on count 4 must be stayed pursuant to section 654. We agree. It is readily apparent that defendant’s receipt of a stolen vehicle and his unlawful driving of it were part and parcel of one indivisible transaction. Therefore, we shall order that imposition of sentence on count 4 be stayed. (People v. Bradley, supra, 115 Cal.App.3d at p. 753.)
C. Defendant’s Prior Prison Term Enhancements Must Be Stricken
An enhancement may be imposed or stricken, but may not be stayed unless the statute provides otherwise. (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) Staying imposition of a section 667.5, subdivision (b) prior prison term enhancement is an unauthorized sentence and is subject to correction by the appellate court. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.)
Here, the court stated that “[a]s to the other three priors, the Court does have some discretion in those matters, and the Court will impose one year for each of the three [section] 667.5[, subdivision] (b) priors, but the Court will stay those and the matter will be stayed until such time as the other sentence becomes permanent.” Thus, it is clear that the trial court intended to exercise its discretion in not imposing sentence on defendant’s three prior prison term enhancements. Moreover, the People concede that sentence on the prior prison terms must be stricken. Therefore, we shall order the superior court clerk to modify the minute order of January 12, 2007, and the abstract of judgment to reflect the striking of the three prior prison term enhancements.
III. DISPOSITION
The trial court is directed to amend the minute order dated January 12, 2007, and the abstract of judgment to reflect that imposition of sentence on count 4 has been stayed and to reflect the striking of the three prior prison term enhancements. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.