Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. SCR30901, SCR31608.
NEEDHAM, J.
Appellant William E. Banks was sentenced to an aggregate term of 34 years eight months for his convictions in two felony cases. He contends the imposition of an upper term sentence on the principal count and accompanying firearm use enhancement violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270] (Cunningham). He also contends the case must be remanded because the court purported to impose a sentence of “one third the middle term” for a firearm enhancement on a subordinate count, when in fact the sentence imposed was one third the upper term. We conclude the second issue has merit and remand the case for resentencing.
I. Facts
Given the limited nature of the issues raised in this appeal from these consolidated cases, an extensive discussion of the facts is unnecessary.
Case No. SCR31608
On August 14, 2000, appellant and a cohort went to the home of Marina Williams to speak with her husband Jerry, who was on parole. A roommate, Zachary Brown, was on the porch smoking a cigarette. One of the men hit Brown on the back of the head with a blunt object, and he lost consciousness for a few minutes. Jerry Williams went to the door, but ran back inside the house and closed the bedroom door behind him. Appellant and the other man followed him inside and were confronted by Marina, who was holding her baby. Appellant hit Marina in the face with his gun, knocking her to the floor. He also held the gun to the back of her head. Zachary Brown entered the apartment and struggled with the men until he was knocked unconscious a second time. The assailants left the apartment.
Case No. SCR30901
On June 8, 2001, appellant was taken to Sonoma County jail on unrelated charges. Cocaine was discovered in his sock during the booking process.
II. Procedural History
Appellant was tried before a jury in case number SCR31608 and convicted of first degree burglary (§ 459, count I) and two counts of assault with a firearm (§ 245, subd. (a)(2), counts II and IV). The jury also determined that he had personally used a firearm as to all counts and had personally inflicted great bodily injury during the commission of one of the assault with a firearm counts. (§§ 12022.5, subd. (a), 12022.7, subd. (a).) In a bifurcated proceeding, the court found that appellant had sustained a prior conviction within the meaning of the five-year serious felony enhancement provision and the three strikes law (§§ 667, subd. (a), 1170.12), and had previously served a prison term (§ 667.5, subd. (b)).
Further statutory references are to the Penal Code unless otherwise indicated.
In case number SCR30901, appellant pled guilty to possessing a controlled substance, cocaine, under Health and Safety Code section 11350, subdivision (a). He also admitted a prior conviction under the three strikes law. (§ 1170.12.)
The court held a consolidated sentencing hearing on the two cases at which it imposed an aggregate term of 33 years eight months in state prison. It failed to complete the pronouncement of sentence on all counts and miscalculated the number of years, so a new sentencing hearing was set to correct those errors. After denying various motions by the defense, the court imposed a term of 34 years eight months, calculated as follows: (1) on count I in case number SCR31608, the six-year upper term for the burglary conviction, doubled to twelve years under the three strikes law, plus an aggravated term of ten years for the firearm use enhancement; (2) on count IV in case number SCR31608, a two-year term (one-third the middle term, doubled) for the assault with a firearm conviction, plus a firearm use enhancement of three years, four months (described by the court as “one-third the mid sentence”), plus a one-year term (one-third the term) for the great bodily injury enhancement; (3) in case number SCR 30901, a term of one year four months (one-third the middle term, doubled) for the cocaine possession count; and (4) a five-year enhancement under section 667, subdivision (a). Sentence on count II in case number SCR31608, the second conviction of assault with a firearm plus a firearm use enhancement, was stayed under section 654.
III. Discussion
Firearm Use Enhancement on Assault Count
Subject to exceptions not relevant here, section 1170.1, subdivision (a) provides that when a defendant is sentenced on multiple felony counts, “The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate enhancements.” Thus, while consecutive sentences on substantive offenses are generally limited to one-third the middle term, a sentencing court may impose one-third of the upper term for an enhancement that carries a range of sentences. (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1302.)
The court in this case stated the following when it imposed a subordinate sentence on the assault with a firearm conviction in count IV: “I’m imposing one third the midterm, and this is the assault on Zachary Brown, of 2 years, and the enhancement under section 12022.5(a), one third the mid sentence, which will be an additional 3 years and 4 months.” A firearm use enhancement under section 12022.5, subdivision (a) has a sentencing range of three, four or ten years, meaning that three years four months is actually one-third of the upper term of ten years. We requested supplemental briefing from the parties on the effect of this discrepancy.
Appellant urges us to remand the case for resentencing, noting that the court cited no circumstances in aggravation when it imposed the sentence on count IV and apparently intended to impose only one-third the middle term (here, one year four months). The People argue that the issue was forfeited by appellant’s failure to object, and that the court’s citation of aggravating factors in connection with the principal count and enhancement shows that it simply misspoke when it characterized the sentence on the subordinate count’s firearm enhancement as “one third the mid sentence.”
On this record, we cannot conclude the trial court meant to impose the upper term sentence. Significantly, the court cited no factors in aggravation when pronouncing sentence on the assault count, although it had cited a number of factors when imposing the upper term on the principal burglary count and the accompanying firearm use enhancement. (See former Cal. Rules of Court, rule 4.406(b)(4), effective at time of the September 2006 sentencing hearing [statement of reasons required when imposing upper term on enhancement].) Though the court did cite two factors in aggravation in connection with the burglary count—Marina William’s vulnerability and the violence of the attack against her—these circumstances did not apply to the assault with a firearm count at issue here, for which the named victim was Zachary Brown.
It may well be that the trial court intended to impose a middle term sentence (reduced to one-third of that term under section 1170.1), but miscalculated the length of that sentence. Or it may be that the trial court intended to impose an upper term sentence, but forgot to explain its reasons and misspoke when describing it. The probation report accurately reflected the sentencing range for the firearm enhancement for the count IV assault conviction, but we cannot rely on the rule that a sentencing court is presumed to have been aware of and followed the applicable law in the face of an affirmative statement showing it was in some way mistaken about the nature of the sentence it was imposing. (Contrast People v. Mosley (1997) 53 Cal.App.4th 489, 496.) The case should be remanded so the court can reconsider the issue and impose the sentence it intended to impose.
Appellant’s failure to object to the sentence on the firearm enhancement in count IV does not preclude us from reaching the issue. While the failure to object generally forfeits any claim that the trial court failed to make or articulate a discretionary sentencing choice, this rule does not apply when the court has imposed an unauthorized sentence in excess of its jurisdiction. (People v. Scott (1994) 9 Cal.4th 331, 354.) An unauthorized sentence is one that “could not lawfully be imposed under any circumstance in the particular case,” and commonly occurs when the court “violates mandatory provisions governing the length of confinement.” (Ibid.) Though the trial court here could have imposed a sentence of three years four months for the firearm use enhancement on count IV, it could not lawfully impose “a one-third the mid sentence” term of three years, four months, when one-third of the middle term under section 12022.5, subdivision (a) is in fact one year four months. And even if we were to conclude the sentence imposed was not technically unauthorized, the difficulty of ascertaining what the trial court meant to do persuades us that we should exercise our discretion to reach the merits of the claim. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
Imposition of Upper Term Sentences
Appellant argues that the trial court violated his Sixth Amendment rights under Apprendi-Blakely-Cuningham because it relied on factors in aggravation that were neither admitted by him nor found true by the jury when it imposed upper term sentences on the principal burglary count and accompanying firearm use enhancement. (Apprendi, supra, 530 U.S. 466; Blakely, supra, U.S. 296; Cunningham, supra, 549 U.S. 270.) We have already concluded that the case must be remanded for resentencing, at which time the court may reconsider the sentence as a whole so long as it does not increase the aggregate term. (See People v. Navarro (2007) 40 Cal.4th 668, 681; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259; People v. Craig (1998) 66 Cal.App.4th 1444, 1452.) The court on remand should follow the procedure outlined in People v. Sandoval (2007) 41 Cal.4th 799, 843-852, when deciding whether to again impose upper term sentences on the principal burglary count and accompanying firearm enhancement allegation.
IV. Disposition
The case is remanded for resentencing. The judgment is otherwise affirmed.
We concur. JONES, P. J., SIMONS, J.