Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM7432. Thomas DeSantos, Judge.
Lauren E. Eskenazi, 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Dawson, J.
A jury convicted appellant Tony Borquez of battery by gassing upon a peace officer by a person confined in state prison (Pen. Code, § 4501.1, subd. (a) ; count 1), battery by a person confined in state prison upon a person not so confined (§ 4501.5; count 2) and misdemeanor simple battery (§ 242; count 3). The jury also found true allegations that appellant had suffered a “strike” and had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). The court imposed a prison term of nine years, consisting of the four-year upper term on count 1, doubled pursuant to the three strikes law (§§ 667, subd. (c)(1), 1170.12, subd. (c)(1)) for a total of eight years, plus one year on the prior prison term enhancement. On count 2, the court imposed the four-year upper term, doubled to eight years pursuant to the three strikes law, and stayed execution of that term pursuant to section 654. On count 3, the court imposed a concurrent term of 180 days. The court also made various monetary orders, including that appellant pay a court security fee of $60 (§ 1465.8).
All statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal appellant contends (1) his count 2 conviction must be reversed because the battery charged in count 2 is a necessarily lesser included offense of the count 1 offense; (2) because the count 2 conviction must be reversed, the $60 court security fee imposed must be reduced by $20, the portion of that fee attributable to the count 2 offense; and (3) the imposition of the upper terms on counts 1 and 2 violated appellant’s right to jury trial under the Sixth Amendment to the United States Constitution, his right to due process of law under the Fifth and Fourteenth Amendments and the federal constitutional prohibitions of ex post facto laws. We will reject contention (3), find merit in contentions (1) and (2) and modify the judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
Instant Offenses
On March 13, 2007, at Corcoran State Prison, Correctional Officer Miller was escorting inmate James Roberts to the inmate’s cell when liquid was thrown from appellant’s cell, striking both Roberts and Officer Miller. Appellant was alone in his cell at the time. Officer Miller testified the liquid smelled like urine and tasted salty. During an investigation of the incident, appellant stated, according to the testimony of an investigating officer, “I saw the dude coming and I gassed him with urine and water. You want the cup, it’s in the cell, I didn’t mean to hit the cop.” A test of a cup found on appellant’s bed was positive for urine.
Sentencing
At sentencing, on March 28, 2008, the court found the following circumstances in aggravation: appellant’s prior convictions were numerous and of increasing seriousness; appellant had served a prior prison term; and his prior performance on probation and parole had been unsatisfactory. The court found no circumstances in mitigation. The court, based on its findings of the circumstances in aggravation summarized above and the absence of circumstances in mitigation, imposed the upper term on each of counts 1 and 2.
There is no dispute that the court’s findings on circumstances in aggravation and mitigation are supported by the record.
DISCUSSION
Necessarily Lesser Included Offense
Appellant contends, and the People conced e, as follows: the same act--throwing urine on Officer Miller--gave rise to appellant’s convictions in counts 1 and 2; the count 2 offense--battery by prisoner on a non-prisoner--is a necessarily lesser included offense of the count 1 offense--battery by gassing on a peace officer by a prisoner; and therefore the conviction of the count 2 offense must be reversed. We agree.
“‘[M]ultiple convictions may not be based on necessarily included offenses.’” (People v. Ortega (1998) 19 Cal.4th 686, 692, overruled on other grounds in People v. Reed (1998) 38 Cal.4th 1224, 1228-1229.) “‘An offense is necessarily included in another if... the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater.’ [Citation.] In other words, when the greater crime ‘cannot be committed without also committing another offense, the latter is necessarily included within the former.’” (People v. Hughes (2002) 27 Cal.4th 287, 365-366.)
The elements of battery by gassing on a peace officer by a prisoner are: (1) a person confined in state prison, (2) commits battery, (3) by excrement or other bodily fluids or substances, (4) upon a peace officer or employee of a state prison. (§ 4501.1, subd. (a).) The elements of battery by a prisoner on a non-prisoner are: (1) a person confined in state prison, (2) commits a battery, (3) upon a person who is not confined in a state prison. (§ 4501.5.) The elements of battery by a prisoner on a non-prisoner are each contained in battery by gassing on a peace officer by a prisoner. We will therefore reverse appellant’s count 2 conviction of battery by a prisoner on a non-prisoner.
Court Security Fee
“To ensure and maintain adequate funding for court security,” section 1465.8 mandates the imposition of a fee of $20 “on every conviction for a criminal offense....” (§ 1465.8.) Here, the trial court imposed a court security fee of $60, representing $20 for each of the three offenses of which appellant stands convicted. As appellant contends and the People concede, with the reversal of appellant’s conviction on count 2, the court security fee must be reduced to $40.
Imposition of Upper Terms
Appellant argues that the imposition of upper term sentences on counts 1 and 2 based on facts found by the sentencing court but not by a jury violated his federal constitutional rights under the principles set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We disagree. As we explain below, we find no Sixth Amendment or other federal constitutional error in the court’s selection of the upper terms.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held, “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.” (Id. at p. 490.) The high court reaffirmed this rule in Blakely v. Washington (2004) 542 U.S. 296, 301 and again in Cunningham, supra, 549 U.S. at pages 288-289.
Cunningham, in addition, held that the version of California’s determinate sentencing law (DSL) then in effect violated a defendant’s Sixth Amendment right to a jury trial 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....” (Cunningham, supra, 549 U.S. at p. 288.) The high court also concluded that the middle term prescribed in the former DSL, not the upper term, was the relevant statutory maximum for Apprendi purposes.
In response to Cunningham, the Legislature amended the former DSL by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2, pp. 4-6; see also People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2.) The amended DSL eliminated the middle term as the presumptive term allows the trial court to exercise broad discretion in selecting the lower, middle or upper term based on reasons stated on the record. As amended, section 1170 now provides: “When 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.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....” (§ 1170, subd. (b) (§ 1170(b)).)
These amendments remedied the constitutional infirmities in the former DSL and were suggested by the Cunningham court itself as a means of doing so. As the Cunningham court observed, a system which permits judges to exercise broad discretion within a statutory range “encounters no Sixth Amendment shoal.” (Cunningham, supra, 549 U.S. at p. 273.) Or as the Third District Court of Appeal recently put it, the Cunningham court suggested that “California could comply with [Sixth Amendment] jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term.” (People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
In the instant case, the court sentenced appellant in March 2008, almost one year after the effective date of the DSL amendments discussed above. The court did not mention the 2007 Cunningham-inspired reform of the DSL when it pronounced sentence, but we presume it was aware of, and applied, the appropriate decisional and statutory law. (People v. Coddington (2000) 23 Cal.4th 529, 644, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Accordingly, we conclude that the court exercised the broad discretion it had under section 1170(b), as amended effective March 30, 2007, in selecting the upper terms, and, as indicated above, the court stated on the record its reasons for doing so. Thus, appellant was sentenced in accordance with the requirements of section 1170(b), as amended, and therefore his upper term sentences did not violate his constitutional rights to jury trial or proof beyond a reasonable doubt.
Appellant acknowledges that under the 2007 amendment to the DSL, there is no constitutional infirmity in a trial court imposing an upper term sentence based on facts not found by a jury beyond a reasonable doubt. He argues, however, that the imposition of sentence under the 2007 amendment to the DSL violated the federal constitutional prohibitions against ex post facto laws, presumably because the instant offenses were committed prior to the effective date of the amendment. We disagree.
In People v. Sandoval, supra, 41 Cal.4th at pages 853-857, our Supreme Court held that imposition of sentence under the 2007 amendment to the DSL for a crime committed prior to the effective date of that amendment did not violate federal constitutional due process and ex post facto principles. Therefore, appellant’s ex post facto claim is without merit.
Appellant argues that Sandoval was wrongly decided. He acknowledges that this court is bound by Supreme Court precedent Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales), but makes this argument to preserve it for federal review.
Moreover, even if, as appellant argues, the trial court, in sentencing appellant, was required to comply with the law in effect prior to the effective date of the 2007 amendment to the DSL, there was no Cunningham error. Even under the former DSL, “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.” (People v. Black (2007) 41 Cal.4th 799, 813 (Black II).) In Black II, the court held the right to a jury trial does not apply to the determination that a defendant’s prior convictions are numerous or of increasing seriousness. (Id. at pp. 818-820.) And in People v. Towne (2008) 44 Cal.4th 63, the court held the right to a jury trial does not apply to determinations of whether the defendant served prior prison terms, whether the subject crime occurred while the defendant was on parole or probation, and (when it can be determined from the record of convictions) whether the defendant’s performance on parole or probation was unsatisfactory. (Id. at pp. 79, 82.)
As indicated above, the court cited three circumstances in aggravation in imposing the upper terms: appellant had served a prior prison term; his prior performance on probation and parole had been unsatisfactory; and his prior convictions were numerous and of increasing seriousness. And as is also indicated above, under Black II and Towne, there is no constitutional right to jury trial on determinations of any of these matters. Therefore, even under the former DSL, appellant’s constitutional challenge to the imposition of upper terms on counts 1 and 2 is without merit.
Appellant argues that Black II and Towne were wrongly decided. He acknowledges that this court is bound by Supreme Court precedent (Auto Equity Sales, supra, 57 Cal.2d at p. 455), but makes this argument to preserve it for federal review.
DISPOSITION
The judgment is modified as follows: Appellant’s count 2 conviction of battery by a person confined in state prison upon a person not so confined in violation of section 4501.5 is reversed, and the court security fee imposed pursuant to section 1465.8 is reduced to $40. The trial court is directed to prepare an amended abstract of judgment indicating these modifications and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. As modified the judgment is affirmed.