Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR025109, John W. DeGroot, Judge.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Jeffrey D. Firestone, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Dawson, J. and Hill, J.
Appellant Jose Adrian Rey challenges his sentence on the grounds that (1) the imposition of an upper term sentence violated the principles set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham) regarding the constitutional right to a jury trial and (2) the imposition of a $100 penalty assessment under Government Code section 70372 was contrary to law.
We conclude that the imposition of the upper term sentence was justified by the superior court’s determination that Rey was on probation at the time of his offense and that determination need not be made by a jury. (People v. Towne (2008) 44 Cal.4th 63 (Towne).) We will strike the reference to the $100 penalty assessment under Government Code section 70372 from the minute order and the abstract of judgment.
FACTS AND PROCEEDINGS
Rey pleaded no contest to stalking (Pen. Code, § 646.9, subd. (b)), resisting or delaying an officer (id., § 148, subd. (a)(1)), and vandalism (id., § 594, subd. (a)) based on an incident that occurred at the home of his ex-wife in May 2006. The superior court found a factual basis for the plea, referred the matter to the probation department for a report and recommendation, and set a sentencing hearing for October 12, 2006.
At the time of the incident, Rey was on probation for a misdemeanor battery against his spouse. In accepting Rey’s plea, the superior court stated:
“In case number MCR20823, you’re on misdemeanor probation for 243(e)(1)[, battery against a spouse]. We will find that you’re in violation of that probation, namely, the term and condition to obey all laws ….”
At the October 12, 2006, sentencing hearing, the superior court suspended imposition of sentence and placed Rey on five years’ felony probation. The trial court also imposed a number of terms and conditions on the grant of probation. The conditions required Rey to notify his probation officer prior to any change of his residence address, obtain his probation officer’s written consent before leaving the state, attend a batterer’s treatment program, and report monthly or as directed by his probation officer.
On May 30, 2007, a petition for revocation of probation was filed. The petition alleged that Rey violated the conditions of his probation by (1) failing to appear for scheduled probation appointments, (2) moving from his reported residence without prior notification to the probation department, and (3) being terminated from the Valley Educational Services batterer’s program for failing to meet payment requirements.
On September 10, 2007, the superior court found that Rey violated the terms of his probation.
On October 26, 2007, the court revoked Rey’s probation and sentenced him to the upper term of four years in prison for his violation of Penal Code section 646.9, subdivision (b). During the hearing, the court identified the following factors as justifying the upper term:
“[Rey]’s prior convictions at the time of the plea, and the Court sees they are numerous. He was on probation when he committed the instant crime; and another factor is that he was on probation and was unsatisfactory as evidence of committing a new law violation while on probation. The mitigating factor is not found in the Court’s view, considering what he’s done.”
The court’s oral pronouncement of the fines Rey was to pay included the following: “Pay a $200 restitution fine pursuant to Section 1202.45 of the Penal Code, all of which is suspended pending a future parole revocation.” The court made no reference to a penalty assessment under Government Code section 70372.
Rey’s sentence was reflected in an October 26, 2007, minute order and in the abstract of judgment The minute order indicated that Rey was to pay a “[r]estitution fine of $200.00 imposed and suspended pending a future parole revocation per PC 1202.45, including a $100.00 penalty assessment per GC 70372(a)/(b).” Item 8 of the abstract of judgment filed October 29, 2007, included the exact same language as that quoted from the minute order.
On October 30, 2007, Rey filed a timely notice of appeal.
DISCUSSION
I. Upper Term Sentence
A. Contentions
Rey contends his upper term sentence violated his constitutional right to a jury trial as defined by a line of United States Supreme Court cases that include Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and Cunningham, supra, 549 U.S. 270. Specifically, he contends that he “had a right to have a jury determine the issues of compliance with prior terms of probation, whether the number of his convictions was numerous, and his probationary status.”
Rey’s opening appellate brief acknowledges that this court is bound by the decisions of the California Supreme Court, which at the time the brief was filed included People v. Black (2007) 41 Cal.4th 799 (Black II ) and People v. Sandoval (2007) 41 Cal.4th 825. Rey believes these two decisions are not consistent with Cunningham and, when followed, result in violations of the constitutional right to a jury trial and due process of law. He also asserts, but does not develop, the argument that application of Black II and Sandoval to his case violates the ex post facto clause of the United States Constitution. Rey’s opening appellate brief explicitly states: “Accordingly, [in this appeal Rey] asserts his federal constitutional challenges to exhaust his state remedies and preserve the right to pursue those challenges further in federal court.”
The Attorney General argues that the upper term sentence was constitutional under Black II based on the superior court’s findings regarding Rey’s criminal history and Rey’s own admissions. In addition, the Attorney General argues that any Cunningham error was harmless under the circumstances of this case.
B. Application of Towne and Black II
On June 26, 2008, after the appellate briefs of the parties were filed, the California Supreme Court filed its decision in Towne, supra, 44 Cal.4th 63. The court adopted a rule of law that “the aggravating circumstance that a defendant … was on probation or parole at the time the crime was committed may be determined by a judge and need not be decided by a jury.” (Id. at p. 70.)
We are required to apply this rule of law. Accordingly, the trial court did not commit constitutional error by determining that Rey was on probation when he committed the instant offense instead of submitting that question to a jury.
Furthermore, in Black II, the California Supreme Court concluded that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance … is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.)
Therefore, the imposition of the upper term can be upheld based on a single, appropriate finding by the superior court. Here, the superior court found that Rey was on probation at the time he committed the offense. Thus, in accordance with Towne and Black II, we conclude that the imposition of the upper term sentence did not violate Rey’s constitutional rights to a jury trial or due process of law. As to the ex post facto clause, we simply note that Rey raises the issue. We are not required to decide issues raised but left undeveloped by the party. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
II. Correction of Minute Order and Abstract of Judgment
Both the minute order and the abstract of judgment reference a $100 penalty assessment under Government Code section 70372 in connection with the $200 restitution fine imposed and suspended under Penal Code section 1202.45. The superior court never mentioned Government Code section 70372 in its oral pronouncement of judgment.
The Attorney General acknowledges that the oral pronouncement of judgment prevails over the minute order or the abstract (People v. Mesa (1975) 14 Cal.3d 466, 471), and requests that we “order the abstract of judgment and clerk’s minute order be corrected to reflect the lower court’s true order by eliminating the reference that the $200 restitution fine under section 1202.45 includes a $100 penalty assessment under Government Code section 70372.”
We agree that the clerk’s minute order and the abstract of judgment contain clerical errors that should be corrected. Accordingly, we will remand to the trial court to correct those two documents. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts].)
DISPOSITION
The case is remanded to superior court with directions to correct, if it has not already done so, both the October 26, 2007, minute order and the abstract of judgment by eliminating the phrase “including a $100.00 penalty assessment per GC 70372(a)/(b).” The court shall file the corrected abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment, as corrected, is affirmed.