Opinion
B299576
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIC SANDOVAL, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA092239) APPEAL from a judgment of the Superior Court of Los Angeles County, Hilleri G. Merritt, Judge. Affirmed and remanded with instructions. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
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Eric Sandoval appeals from the trial court's judgment entered after a jury convicted him of one count of felony domestic violence under Penal Code section 273.5, subdivision (a) and he admitted two one-year priors under Penal Code section 667.5, subdivision (b). The trial court sentenced Sandoval to the upper term of four years for the domestic violence conviction; there is confusion in the record regarding whether the trial court imposed an enhancement based on the one-year priors. Sandoval asks us to strike any priors imposed under section 667.5, subdivision (b) based on newly enacted Senate Bill No. 136 and to remand for resentencing because the entire sentence may have been infected by the trial court's consideration of the one-year priors under section 667.5, subdivision (b). We will affirm the judgment, but we will remand the case and order the trial court to strike any enhancements imposed based on section 667.5, subdivision (b).
Further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
In January 2019, Sandoval punched his girlfriend in the face. The punch moved her teeth back.
The People charged Sandoval by information with one count of felony domestic violence under section 273.5, subdivision (a), and alleged under section 12022.7, subdivision (e) that he had caused his girlfriend great bodily injury. The information also alleged under section 667.5, subdivision (b) that on October 13, 2016, Sandoval had been convicted of identity theft under section 530.5, subdivision (a) and transporting a controlled substance under Health and Safety Code section 11352, subdivision (a).
The jury found Sandoval guilty of the domestic violence charge, but found untrue the great bodily injury allegation. Sandoval admitted the October 2016 priors.
At Sandoval's sentencing hearing, the trial court selected the upper term for Sandoval's domestic violence conviction and declined to impose additional time under section 667.5, subdivision (b). The trial court stated its reasons for selecting the upper term after denying probation: "The real question is whether this is a midterm or high term case, and what concerns the court is that [Sandoval's] crimes are escalating. It is a circumstance in aggravation when the crimes seem to escalate and not—they're going in the wrong direction. They're going up. [¶] He just spent four years—he was on a four-year, eight-month sentence, got paroled not long before this occurred, which tells me that things are going the wrong direction for Mr. Sandoval. I can see no circumstances in mitigation here, so, as such, I'm going to sentence him to the high term of four years."
The record suggests that an additional one year may have been imposed and stayed. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1125 [highlighting shorthand use and distinction of "imposed" and "stayed" to mean "imposed and executed" and "imposed and stayed"].) At the sentencing hearing, the trial court stated, "I am not going to impose the additional year under 667.5(b)." The minute order from the sentencing hearing states, "[t]he court orders the punishment pursuant to Penal Code section 667.5(b) allegation stayed." The abstract of judgment reflects a stayed section 667.5, subdivision (b) enhancement. We note the conflict, but need not resolve it to dispose of the question presented.
Sandoval filed a timely notice of appeal.
DISCUSSION
Sandoval contends that Senate Bill No. 136, which became effective January 1, 2020, requires us to strike the one-year sentencing enhancement that the trial court imposed and stayed under section 667.5, subdivision (b). Sandoval also argues that he is entitled to resentencing because the trial court is presumed to have considered the priors alleged under section 667.5, subdivision (d) when it selected the upper term for Sandoval's domestic violence conviction. The People agree that any enhancement imposed under section 667.5, subdivision (b) should be stricken pursuant to Senate Bill No. 136, but contend that Sandoval is not otherwise entitled to resentencing.
Senate Bill No. 136 amended section 667.5, subdivision (b) to limit imposition of enhancements under that section to prior sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b). (Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1.) Neither of Sandoval's prior violations meets the newly-narrowed set of offenses eligible for sentencing enhancement under section 667.5, subdivision (b). (See Welf. & Inst. Code, § 6600, subd. (b).) We agree with Sandoval and the People that if an enhancement was imposed under section 667.5, subdivision (b), Sandoval is entitled to have it stricken from his sentence. We will order the clerk of the superior court to file an amended abstract of judgment reflecting no enhancement under section 667.5, subdivision (b).
We disagree, however, with Sandoval's assertion that he is entitled to resentencing based on a presumption that the trial court considered the enhancement when it selected the upper term for his domestic violence conviction. "Section 1170 explains how a trial court should determine the appropriate sentence from the applicable sentencing triad under the Determinate Sentencing Law. Subdivision (b) of section 1170 instructs on the use of mitigating and aggravating circumstances. In pertinent part, this subdivision states: '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.' California Rules of Court, rule 4.420(c) is in agreement: 'To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.' " (People v. McFearson (2008) 168 Cal.App.4th 388, 392.)
We have no quarrel with the general presumption on which Sandoval relies that a trial court considers a sentence holistically. That presumption has no application here, however, where trial courts must follow specific guidance when selecting the upper term. The trial court stated that it was selecting the upper term based on the increasing seriousness of Sandoval's convictions. (See Cal. Rules of Court, rule 4.421(b)(2).) The increasing seriousness of a defendant's convictions is different than the mere existence of multiple convictions. Moreover, "[o]nly a single aggravating factor is required to impose the upper term . . . ." (People v. Osband (1996) 13 Cal.4th 622, 728.)
Sandoval has not demonstrated that the trial court considered any improper criteria when it selected the upper term. We decline to order resentencing.
DISPOSITION
On remand, the clerk of the superior court shall file an amended abstract of judgment containing no reference to enhancements under section 667.5, subdivision (b). The trial court's judgment is affirmed in all other respects.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
BENDIX, Acting P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.