Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07902881, Jonathan B. Conklin, Judge.
Nuttall & Coleman, Mark W. Coleman and Shannon C. Harding, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, David A. Lowe and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Hill, J. and Kane, J.
Appellant entered pleas of guilty to one count of committing a lewd or lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and one misdemeanor count of annoying or molesting a child under 18 years of age (Pen. Code, § 647.6, subd. (a)). He was sentenced to the upper term of eight years in state prison on the section 288, subdivision (a) count and “received credit for time serves” (sic) as to the misdemeanor count.
All further statutory references are to the Penal Code unless otherwise stated.
APPELLANT’S CONTENTION
Appellant contends that “the trial court improperly imposed the aggravated term in violation of appellant’s constitutional rights.” As we shall explain, we find the contention to be without merit and will affirm the judgment.
DISCUSSION
A violation of section 288, subdivision (a), “shall be punished by imprisonment in the state prison for three, six, or eight years.” (§ 288, subd. (a).) In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held that “[o]ther 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. 490.) The court found this rule to be a requirement of the Fourteenth Amendment’s guaranty of due process of law. “[T]he ‘due process of law’ that the Fourteenth Amendment requires the States to provide to persons accused of crime encompasses the right to a trial by jury, Duncan v. Louisiana, 391 U.S. 145 [] (1968), and the right to have every element of the offense proved beyond a reasonable doubt, In re Winship, 397 U.S. 358 [] (1970).” (Apprendi v. New Jersey, supra, 530 U.S. at p. 477, fn. 3.) “[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.” (Blakely v. Washington (2004) 542 U.S. 296, 303.)
Prior to an amendment which took effect in March of 2007, California’s Determinate Sentencing Law (§ 1170 et seq. (“DSL”)) provided that “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. … The court shall set forth on the record the facts and reasons for imposing the upper or lower term.” (Former § 1170, subd. (b), added by Stats. 2007, ch.3, § 2.) In Cunningham v. California (2007) 549 U.S. 270, the U.S. Supreme Court held that California’s DSL violated the due process rights of defendants sentenced to an upper term on the basis of circumstances in aggravation found by a judge and established by a preponderance of the evidence. “Under California’s DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance.… [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed by California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.] … Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the DSL violates Apprendi’s bright-line rule: Except 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 v. California, supra, 549 U.S. at p. 868.)
In response to Cunningham, the California Legislature amended the DSL so that a trial court is no longer required to “order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Former § 1170, subd. (b), added by Stats. 2007, ch.3, § 2.) The statute now states that “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” (Ibid.) The “statutory maximum” (Blakely v. Washington, supra, 542 U.S. at p. 303) for a violation of section 288, subdivision (a), is therefore now eight years, not six.
Appellant’s argument that his eight-year upper term was a “violation of appellant’s constitutional rights” appears to assume that the “statutory maximum” for his section 288, subdivision (a) violation was the middle term of six years. It was not. It was the upper term of eight years. The amended DSL became effective March 30, 2007, before appellant was ever charged in this case. “It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal3d 282, 287.) “[I]t is evident that a law governing the conduct of trials is being applied ‘prospectively’ when it is applied to a trial occurring after the law’s effective date, regardless of when the underlying crime was committed or the underlying cause of action arose.” (Tapia v. Superior Court, supra, 53 Cal.3d at p. 289; in accord, see also People v. Sandoval (2007) 41 Cal.4th 825, 845.) Under the amended DSL, “[t]he trial court will be required to specify reasons for its sentencing decision, but will not be required to cite ‘facts’ that support its decision or to weigh aggravating and mitigating circumstances. [Citations.]” (People v. Sandoval, supra, 41 Cal.4th at pp. 846-847.) In sum, appellant has shown no violation of his constitutional rights.
Appellant’s section 288, subdivision (a) offense was committed in January of 2007. The felony complaint charging him with this crime was filed on April 13, 2007. Therefore, at the time of trial, appellant was on notice of the procedural change in the DSL.
A sentence pronounced under the amended DSL is still subject to review for abuse of discretion.
“Even with the broad discretion afforded a trial court under the amended sentencing scheme, its sentencing decision will be subject to review for abuse of discretion. (See People v Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-977 [] [trial court’s decision whether to reduce a ‘wobbler’ offense to a misdemeanor under § 17, subd. (b) is reviewable for abuse of discretion]; People v. Russel (1968) 69 Cal.2d 187, 195 [] [‘all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue’].) The trial court’s sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ (Alvarez, supra, 14 Cal.4th at p. 978 [].) As under the former scheme, a trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. (See, e.g., People v. Colds (1981) 125 Cal.App.3d 860, 863 [] [it is improper to consider a waiver of jury trial in mitigation, or an exercise of the right to jury trial as aggravation]; People v. Johnson (1988) 205 Cal.App.3d 755, 758 [] [‘defendant’s alienage is not a proper factor when considering the length of his term’].) A failure to exercise discretion also may constitute an abuse of discretion. (See, e.g., People v. Crandell (1988) 46 Cal.3d 833, 861 []; People v. Benn (1972) 7 Cal.3d 530, 535.)” (People v. Sandoval, supra, 41 Cal.4th at pp. 847-848.)
To the extent that appellant’s brief might be construed as an argument that the trial court abused its “broad discretion” (People v. Sandoval, supra, 41 Cal.4th at p. 847) in imposing the upper term (but see Cal. Rules of Court, rule 8.204(a): “Each brief must: … [s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority”), we find no abuse of discretion. The judge explained in detail his reasons for imposing the upper term. The court pointed out that the victim was particularly vulnerable and that appellant “did take advantage of a position of trust and confidence.” The court further stated that “those are two independent circumstances; but either one, standing alone, prevails in this case.” Appellant argues that the victim was not “particularly vulnerable” because the vulnerability resulted from the child’s young age, and all victims of a section 288, subdivision (a) violation are, by definition, “under the age of 14 years.” (§ 288, subd. (a).) Even if that argument had merit (a point we need not decide), the court clearly stated that appellant took advantage of a position of trust and confidence, and that this circumstance “standing alone” justified the upper term. Appellant did indeed violate a position of trust and confidence. The child victim was permitted to stay overnight in appellant’s home because the victim was a relative of appellant, and the victim and the victim’s parents trusted appellant, a man in his 40’s, to properly care for the child.
DISPOSITION
The judgment is affirmed.