Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIF125191. Elisabeth Sichel, Judge. Affirmed with directions.
Kevin D. Sheehy, 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, and David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted Pedro Trujillo of possession of a weapon by a prisoner in violation of Penal Code section 4502, subdivision (a), and possession of drug paraphernalia by a prisoner in violation of section 4573.8. Defendant admitted five prior prison term allegations within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was given a four-year upper term sentence on count 1, the violation of section 4502, subdivision (a). On appeal, he contends this upper term sentence violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), because the trial court, in reaching its upper term sentencing decision, made factual findings that aggravating factors existed and then weighed them against a mitigating factor.
Defendant was given a consecutive term (one-third the middle term) of eight months for count 2, and one year for each of the five prior prison term enhancements, for a total sentence of nine years eight months.
As discussed below, defendant contends that the trial court actually intended to impose a concurrent sentence on count 2.
I. FACTS
Defendant was imprisoned at the California Rehabilitation Center in Norco. A correctional sergeant testified that, on April 7, 2005, he conducted a random search of defendant’s dormitory with other officers. As two officers went past him, defendant reached down and grabbed a paper bag. He was searched and a manufactured syringe was found in the bag. A manufactured weapon was subsequently found in defendant’s laundry bag.
II. SENTENCING
Defendant was sentenced on February 27, 2006, almost a year before Cunningham was decided. The trial court considered the probation report and a statement in mitigation filed by defendant. The trial court relied on four factors: (1) the manner in which the crime was carried out indicated planning, sophistication, or professionalism (Cal. Rules of Court, rule 4.421(a)(8)); (2) defendant had been unsuccessful in every attempt at rehabilitation and probation; (3) defendant was not taking responsibility for his conduct; and (4) defendant’s prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)). It therefore selected an upper term sentence on count 1. Defendant’s notice of appeal was filed on February 28, 2006. On appeal, defendant contends the upper term sentence violates Cunningham.
All further references to rules are to the California Rules of Court.
III. BACKGROUND
On January 22, 2007, the Supreme Court decided that California’s determinate sentencing law (DSL) violates a defendant’s right to a trial by jury because it authorizes the trial judge, not the jury, to find facts that expose defendant to an upper term sentence. The court explained: “As this Court’s decisions instruct, the 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. [Citations.] ‘The relevant “statutory maximum,”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ [Citation.] In petitioner’s case, the jury’s verdict alone limited the permissible sentence to 12 years. Additional factfinding by the trial judge, however, yielded an upper term sentence of 16 years. The California Court of Appeal affirmed the harsher sentence. We reverse that disposition because the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial.” (Cunningham, supra, 127 S.Ct. at p. 860.)
Cunningham also cites Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). In that case, the court held that the “statutory maximum” is the maximum sentence the court could impose without making any additional factual findings. (Ibid.)
Cunningham extended to California’s DSL the principles enunciated in Jones v. United States (1999) 526 U.S. 227 [119 S.Ct. 1215, 143 L.Ed.2d 311] (Jones) and Apprendi v. New Jersey (2000) 530 U.S. 466, 476 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi).
In Jones, the Supreme Court held that, “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” (Jones, supra, 526 U.S. at p. 243, fn. 6.)
Apprendi states: “In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ [Citations.]” (Apprendi, supra, 530 U.S. at p. 490.)
The prior conviction exception is based on Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] (Almendarez-Torres). Cunningham reaffirmed the prior conviction exception but did not directly discuss it. Thus, under the Almendarez-Torres exception to the Apprendi rule, a sentence in excess of the statutory maximum may be imposed based on a judge’s finding that a defendant had a prior conviction.
In People v. McGee (2006) 38 Cal.4th 682, our Supreme Court considered “(1) the breadth or scope of the so-called Almendarez-Torres exception applicable to an increase in sentence based upon a defendant’s recidivism, and (2) the specific nature of the inquiry that is required to be made under California law in this matter.” (Id. at p. 702.) The court concluded: “As noted ante, the Court of Appeal in the present case narrowly construed the Almendarez-Torres exception for recidivist conduct as preserved by Apprendi. In so holding, however, we believe the Court of Appeal improperly minimized the distinction between sentence enhancements that require factfinding related to the circumstance of the current offense, such as whether a defendant acted with the intent necessary to establish a ‘hate crime’--a task identified by Apprendi as one for the jury--and the examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction--a task to which Apprendi did not speak and ‘the type of inquiry that judges traditionally perform as part of the sentencing function.’ [Citation.]” (Id. at pp. 708-709.)
The court in People v. McGee, supra, 38 Cal.4th 682 specifically approved cases such as People v. Thomas (2001) 91 Cal.App.4th 212, which held that: “In terms of recidivism findings that enhance a sentence and are unrelated to the elements of a crime, Almendarez-Torres is the controlling due process authority. Almendarez-Torres does not require full due process treatment of an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. Apprendi did not overrule Almendarez-Torres. The language relied upon by defendant in Apprendi, ‘[o]ther than the fact of a prior conviction,’ refers broadly to recidivism enhancements which include section 667.5 prior prison term allegations.” (Id. at pp. 222-223.)
Cunningham rejected the California Supreme Court’s defense of the DSL in People v. Black (2005) 35 Cal.4th 1238 (Black I). (Cunningham, supra, 127 S.Ct. at pp. 863-871.) It therefore found that California’s DSL violates a defendant’s right to a jury trial on any fact, other than a prior conviction, which increases the sentence. (Id. at p. 860.)
Following its decision in Cunningham, the United States Supreme Court remanded Black I to the state Supreme Court for reconsideration in light of Cunningham. After the parties had fully briefed this appeal, the state Supreme Court decided People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 Cal. Lexis 7604] (Black II). In Black II, the court reviewed Apprendi and Blakely in light of Cunningham, and concluded that, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, [p. 20].)
The court then recognized that, under the former DSL, the presence of a single aggravating factor is sufficient to make the defendant eligible for an upper term sentence. (Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604] [p. 21], citing People v. Osband (1996) 13 Cal.4th 622, 728; see § 1170, subd. (b).) Accordingly, the court reasoned that, if one aggravating factor is established in accordance with Sixth Amendment requirements, “the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, [p. 22], fn. omitted.) In sum, a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi and its progeny makes the defendant eligible for the upper term, and does not violate the Sixth Amendment right to jury trial, because that single fact is the only one that is “legally essential” to the defendant’s punishment. (Black II, supra, [p. 18].) “[A]ny additional fact finding 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.” (Id. [p. 19].)
The Black II court further explained: “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows 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 has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604] [pp. 28-29], italics added.)
IV. ANALYSIS
A. No Forfeiture
Preliminarily, the Attorney General contends that defendant forfeited his present claim of error by failing to object at sentencing. The Attorney General notes that Blakely was decided on June 24, 2004, and defendant did not make any objection based on Blakely at his sentencing in 2006.
After the parties had fully briefed this appeal, the state Supreme Court decided this issue adversely to the Attorney General in People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [2007 Cal. Lexis 7606] (Sandoval). In Sandoval, as in the present case, the defendant was sentenced after Blakely was decided in June 2004, but also after the state Supreme Court decided Black I in June 2005. Black I categorically rejected the argument that the DSL was unconstitutional in light of Blakely. To the contrary, Black I held that an upper term sentence imposed in accordance with the DSL does not violate a defendant’s right to a jury trial. (Black I, supra, 35 Cal.4th at pp. 1257-1258.)
In response to Cunningham, the California Legislature amended section 1170, subdivision (b) of the DSL to give the trial court discretion to impose the upper, middle, or lower term. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40), effective Mar. 30, 2007.) Our references to section 1170 and to the DSL are to the statutes as they read prior to the March 30, 2007, amendments.
In view of Black I, Sandoval recognized that any objection by the defendant to her upper term sentence in light of Blakely would have been futile, because the trial court was bound by Black I at the time the defendant was sentenced. Thus, the court held, the defendant did not forfeit her claim on appeal by failing to raise it at sentencing. (Sandoval, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7606] [pp. 15-16]; see also Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604] [pp. 13-18] [no forfeiture where defendant failed to object to upper term and was sentenced before Blakely or Black I were decided].) Here, too, defendant was sentenced when the trial court was bound by Black I; thus, defendant has not forfeited his claim of sentencing error for failing to raise it at the time of his sentencing.
B. Cunningham Error
Defendant contends his upper term sentence must be reversed and reduced to the midterm based on Cunningham. The Attorney General first points out that defendant’s five prior convictions were not in issue because the convictions were admitted by defendant. From this fact, the Attorney General argues that the convictions made defendant eligible for an upper term sentence and provided the trial court the authority to impose an upper term sentence.
Following Black II and Sandoval, we must determine whether at least one of the aggravating factors found by the trial court satisfies the Sixth Amendment requirements as interpreted by Cunningham. If so, then defendant was eligible for the upper term, and that ends our Sixth Amendment analysis. (Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604] [pp. 28-29].) But if defendant was not eligible for the upper term, then we must consider whether the trial court’s Cunningham error in sentencing him to the upper term was harmless beyond a reasonable doubt. If the error was not harmless beyond a reasonable doubt, we must remand the matter for resentencing in light of Cunningham and Sandoval. (Sandoval, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7606] [pp. 16-29].)
We begin our analysis by considering whether defendant was eligible for the upper term under the prior conviction or recidivism exception to the Apprendi rule, which originated in Almendarez-Torres. Black II recognizes that a judge’s finding that qualifies under the recidivism exception satisfies Sixth Amendment requirements and renders the defendant eligible for the upper term under the former DSL. (Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604] [pp. 33-34].)
First, none of defendant’s five prior convictions made him eligible for the upper term under the former DSL. Defendant was sentenced to one-year terms for each of his five prior convictions under section 667.5, subdivision (b). Former section 1170, subdivision (b), prohibited the dual use of a prior conviction for enhanced sentence and an upper term sentence. The statute provided: “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.” (§ 1170, subd. (b); see also rule 4.420(c).) Had the trial court not sentenced defendant to enhanced terms based on the five prior convictions, any one of the convictions would have made defendant eligible for the upper term.
Second, none of the trial court’s other findings qualified under the Almendarez-Torres exception to the Apprendi rule. As noted, the trial court relied on four factors in selecting the upper term: (1) the manner in which the crime was carried out indicated planning, sophistication, or professionalism (rule 4.421(a)(8)); (2) defendant had been unsuccessful in every attempt at rehabilitation and probation; (3) defendant is not taking responsibility for his conduct; and (4) defendant’s prior performance on parole and probation was unsatisfactory (rule 4.421(b)(5)).
Only the second and fourth factors arguably qualify under the recidivism exception. An expansive reading of Almendarez-Torres allows consideration of facts relating to the prior conviction, such as “the sentence imposed and the status and timing of the defendant’s incarceration in relation to subsequent offenses.” Although the trial court properly did not rely on the facts of the prior convictions in selecting the upper term under the former DSL, it was authorized to consider the prior convictions in determining facts shown on the record of sentencing, including whether parole was granted and whether defendant was on parole at the time of the current offense. Each of these is intrinsically related to the prior conviction. Here, however, the court went further.
The court stated: “I did weigh that, but frankly in my mind it was outweighed by the nature of the conduct in this case, and the fact that he had been so unsuccessful in every other attempt at rehabilitation and probation. Parole he has not performed satisfactory. He ended in an escape. I think one of his convictions were [sic] for escape. [¶] . . . [¶] Again, when I look at the totality of the mitigating and aggravating factors I have a concern that speaks in favor of aggravation and overcomes mitigating factors. And specifically I am referring to the fact that he is still not taking responsibility for his behavior. Someone who is in recovery and dedicated to that wouldn’t do that after a conviction. [¶] . . . It was a fairly sophisticated crime, the manufacturing of the hypodermic, frankly, impressed me more than the shank. But, again, it just struck me the shank itself was well constructed. As the probation report indicates[,] it was out of everyday items. The manner in which the shank was hidden and the manner in which the hypodermics were hidden and so forth.”
A finding that a defendant’s performance on parole was good, bad, or indifferent, moves subtly beyond the concept of recidivism and into factfinding that does not satisfy Sixth Amendment requirements. Additionally, from the probation report it appears that some of defendant’s parole violations were not based on convictions, but on conduct he neither admitted nor for which he suffered a conviction. Based on the particular facts of this case, we cannot say that the trial court’s finding relative to defendant’s performance on probation or parole qualifies under the Almendarez-Torres exception.
Nor do any of the trial court’s other findings -- aside from defendant’s five prior convictions -- satisfy Sixth Amendment requirements. To satisfy Sixth Amendment requirements, a finding must either be admitted by the defendant or established by the jury’s verdict beyond a reasonable doubt. (Sandoval, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7606] [p. 16].) The court’s finding regarding defendant’s performance on probation or parole was not established by the jury’s verdict. None of the evidence presented at trial had anything to do with defendant’s prior performance on probation or parole. Similarly, the jury did not necessarily determine that the manner in which the crime was carried out indicated planning, sophistication, or professionalism, or that defendant was not taking responsibility for his conduct. Nor did defendant admit any of these findings.
Because none of the trial court’s findings satisfied Sixth Amendment requirements and rendered defendant eligible for the upper term under the former DSL, we next consider whether the trial court’s error in imposing the upper term was harmless beyond a reasonable doubt. (See Sandoval, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7606] [p. 19].) The Attorney General claims any Cunningham error was harmless beyond a reasonable doubt because any jury would have found each of these aggravating circumstances true beyond a reasonable doubt.
The issue, however, is not what any reasonable jury would have found, but what the jury that heard the matter would have concluded beyond a reasonable doubt. (People v. Lewis (2006) 139 Cal.App.4th 874, 885.) Furthermore, in accordance with Sandoval, the question the reviewing court must consider is whether, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . .” (Sandoval, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7606] [p. 19].) If so, then the Sixth Amendment error may properly be found harmless. (Ibid.; see also Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 165 L.Ed.2d 466].) For the reasons discussed, we cannot say that defendant’s jury would have necessarily found any aggravating factor true beyond a reasonable doubt. None of the evidence presented to the jury had any bearing on any of the aggravating factors the trial court found, or on any others that could have made defendant eligible for the upper term.
An aggravating circumstance is one that “makes the offense ‘distinctively worse than the ordinary.’ [Citation.]” (Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604] [p. 31].) Accordingly, aggravating circumstances include not only those listed in rule 4.421, but also “[a]ny other facts statutorily declared to be circumstances in aggravation,” (rule 4.421(c)) and any other facts “reasonably related to the decision being made” (rule 4.408(a)).
It follows that the matter must be remanded to the trial court for resentecing in light of Cunningham and Sandoval. In Sandoval, the court retroactively reformed the DSL to conform to the California Legislature’s urgency legislation amending the DSL effective March 30, 2007. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40).) This means that, on remand, the trial court will have discretion to impose the upper, middle, or lower term, and must state its reasons for its sentencing choice. (Sandoval, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7606] [pp. 37-38].) The Judicial Council’s amendments to the sentencing rules, made effective May 23, 2007, are designed to conform to the current, retroactive version of the DSL, and will provide guidance for the trial court on remand. (Id. [pp. 37-38].)
V. CORRECTION OF THE ABSTRACT OF JUDGMENT
In pronouncing sentence, the trial court repeatedly said that it was imposing a concurrent sentence on count 2. However, the clerk’s minutes and the abstract of judgment reflect a consecutive eight-month sentence on count 2. Defendant argues that we should correct this error, and the Attorney General agrees. We will therefore order the abstract of judgment to be modified accordingly.
Originally, the trial court stated that the total term of nine years would run concurrently with defendant’s current sentence. But after the prosecutor pointed out that consecutive sentencing was required under section 4502, subdivision (a), the trial court made the sentencing consecutive. However, the abstract of judgment states that the sentence is to be concurrent to any current case the defendant is serving time on. The Attorney General requests that this error be corrected, and we will order modification of the abstract of judgment accordingly.
The Attorney General also points out that the trial court imposed but stayed a parole restitution fine of $500 pursuant to section 1202.45. However, the abstract of judgment refers to a fine of $200 under section 1202.45. We will also order correction of this clerical error.
VI. DISPOSITION
The matter is remanded to the trial court for resentencing consistent with the views expressed in this opinion. Following resentencing, the trial court is ordered to prepare an amended abstract of judgment as follows: (1) change the sentence on count 2 from a consecutive sentence to a concurrent sentence, thus changing the total term to nine years; (2) change paragraph 11 to show that the sentence in this case will run consecutively to defendant’s current sentence; and (3) change the suspended restitution fine under section 1202.45 from $200 to $500. The trial court is ordered to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez, P.J., Miller, J.
Also, in response to the Legislature’s amendment of the DSL, the Judicial Council amended the sentencing rules effective May 23, 2007. Our references to the California Rules of Court are as they read prior to these amendments.