Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA241306, Sam Ohta, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Ruben O. Boulware (appellant) was found guilty by jury of two counts of workers’ compensation fraud (Ins. Code, § 1871.4, subd. (a)(1); counts 1 and 2) and one count of insurance fraud (Pen. Code, § 550, subd. (a)(1); count 4), with jury findings that he had four prior convictions that qualified him for sentencing pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12). Pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court struck three of four findings of a prior serious or violent felony convictions and sentenced appellant to a doubled upper term of 10 years for the count 1 workers’ compensation fraud. It imposed and stayed the term imposed for count 2. Consecutive to the principal term, it imposed a subordinate term of one-third of the middle term of three years, or one year, and doubled it pursuant to the Three Strikes law. The aggregate term of imprisonment was 12 years.
All further statutory references are to the Penal Code unless otherwise indicated.
He appealed, and this court affirmed the judgment. (People v. Ruben Odell Boulware, B171283, filed Oct. 26, 2004 [unpub. opn.].) Appellant had also filed a petition for habeas corpus that this court considered concurrently with the appeal, In re Ruben O. Boulware, B174108. This court denied the petition for a writ of habeas corpus. Thereafter, appellant petitioned the California Supreme Court for review and filed two successive petitions for writ of habeas corpus in the California Supreme Court. The California Supreme Court denied the petition for review, as well as the petitions for a writ of habeas corpus. Appellant filed a petition for a writ of habeas corpus in the United States District Court in the Central District of California. That court held that there was reversible instructional error with respect to appellant’s convictions of workers’ compensation fraud and ordered appellant discharged from all adverse consequences of his convictions in counts 1 and 2, unless on remand he was brought to a timely trial on those counts.
On remand, on May 2, 2007, the People informed the trial court that they were unable to proceed to trial on counts 1 and 2. The trial court dismissed the charges of workers’ compensation fraud, leaving appellant with only the one conviction of insurance fraud. The trial court resentenced appellant to a doubled, upper term of five years for the count 4 insurance fraud, an aggregate term of 10 years in state prison.
Appellant again appeals from the judgment.
In this appeal, he contends that his resentencing involved Apprendi-Blakely-Cunningham error and that he is entitled to have his current sentence reversed. Further, this court is required to order a remand during which the trial court will be required to resentence appellant to a middle term of three years. (Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).)
The contention lacks merit, and we affirm the judgment.
FACTS
Briefly, the facts underlying appellant’s convictions were that on January 7, 2000, appellant complained to a doctor of a shoulder injury occurring during work at a special events company. He disclosed a 1991 injury, but not a more recent 1999 car accident injury involving neck and shoulder pain. During his initial visit to the doctor, he obtained a $207 receipt from an employee documenting his doctor visit. He used that receipt later that day to support a false claim he made of a thumb injury that he claimed occurred while he was shopping at a grocery store. He had not reported or received any medical treatment for a thumb injury that day during his medical visit, and the manager of the grocery store discovered the claim was false when he telephoned the doctor’s office to verify the claim. Appellant applied for workers’ compensation benefits for his shoulder injury. One of the issues at trial was whether the failure to disclose the 1999 injury constituted workers’ compensation insurance fraud.
On May 2, 2007, on remand, the People announced that they were unable to proceed to trial for counts 1 and 2. The trial court dismissed counts 1 and 2 and resentenced appellant on the count 4 insurance fraud, the only remaining conviction. During the 2007 resentencing, the trial court restructured its 2003 sentence as indicated above. Instead of the subordinate doubled middle term appellant had previously received, the trial court imposed a doubled upper term of five years, or 10 years, for the insurance fraud.
During the resentencing proceedings, the trial court said that it had read the reporter’s transcript of its original, 2003 sentence. It commented that previously, it had struck three of four prior conviction allegations pursuant to Romero, supra, 13 Cal.4th 497. It indicated that it would treat its former Romero order as continuing in effect. It observed that Senate Bill No. 40 had amended section 1170, subdivision (b), to change certain sentencing procedures for the Determinate Sentencing Law (DSL). Now, the trial court was empowered, pursuant to the new court rules and that amendment, to exercise its full discretion to select one of the triad of terms provided for in the DSL as punishment for a criminal offense.
It noted that, in any event, the constitutionality of appellant’s term of imprisonment was never in issue with respect to the rule in Apprendi, Blakely, and Cunningham. The trial court indicated that appellant’s recidivism—prior convictions and factors related to probation and parole—provided an exception to the rule in Apprendi requiring a jury trial. Thus, the trial court concluded that even under former law, for appellant, the upper term was the statutory maximum. The trial court said that it had previously made that same observation during the original sentencing proceedings.
The prosecutor argued for the imposition of a doubled upper term of imprisonment; appellant requested a doubled middle term.
The trial court said explicitly that during the current resentencing, “I’m going to conduct a new analysis.”
It explained its original thinking: “And how I analyzed it, which I agree with now, is essentially this: that I looked at the defendant’s criminal history, I looked at his prior convictions. He had four robbery convictions from two separate cases. I dismissed all strikes related to the 1992 incident and then kept the one strike related to the . . . residential robbery, the more aggravated of the two instances of robbery, and applied that strike. And then I looked at the facts of his criminal past in considering [the upper] term as appropriate.” The trial court read into the record its prior comments. It noted that it had referred to the aggravating factors found in the probation report and adopted them, namely: “The defendant has served a prior prison term, [he] was on probation or parole when he committed the offense and that [his] prior performance on parole was unsatisfactory.” It said that there was no mitigation and that the aggravating factors predominated.
The trial court said: “That’s how I analyzed it last time. Again, as stated under SB40, [there is] no weighing of aggravating or mitigating factors, but it seems to me that the same harmonics of the analyses apply here as well.” It commented: “I’ve stricken three of his strikes. I’ve taken him out of 25 years to life. He’s been convicted of a felony that has a sentencing range of two, three, or five years. There is one strike left to be used, and based on his criminal history and the fact that I struck the strikes, it is my view appropriate that I impose the [upper] term and double that . . . . So for those reasons, the court will impose the [upper] term . . . five years in state prison, which is doubled pursuant to the strike, for a total term of ten years in state prison.”
DISCUSSION
I. The Contentions
We had difficulty pinpointing appellant’s contention: it is apparent, however, that he claims that he is entitled to resentencing and asks this court for a reversal of the resentencing order, with an order on remand directing the trial court to impose a three-year middle term. Appellant appears to be arguing that after his successful federal writ petition, on remand, all the trial court was empowered to do was to impose, pursuant to its earlier 2003 sentencing order, a middle term of three years. Conclusionally, he also seems to be asserting that the three strikes sentencing scheme does not apply. In his opening brief, he urges that the decisions made by the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) are in error as they implement Cunningham. He claims that the decisions in Black and Sandoval are flawed because all aggravating factors, not simply one, single factor, must be based upon a jury finding, an admission, or recidivism before a trial court can use such factors to impose an upper term. Also, he complains that the decisions in Black and Sandoval interpret the exception for recidivism too broadly. He asserts that properly, the recidivism exception to the rule in Apprendi is limited to prior convictions alone. (See United States v. Almendarez-Torres (1998) 523 U.S. 244.) Without explaining his point and citing only the decision in Miller v. Florida (1987) 482 U.S. 423, 435-436 (Miller), he claims that resentencing him pursuant to the decision in Sandoval denied him due process of law and violated the prohibition against ex post facto laws.
The contention lacks merit.
II. Background
As the trial court observed when it resentenced appellant, the provisions of Senate Bill No. 40 went into effect as urgency legislation on March 30, 2007. (Stats. 2007, ch. 3, § 3 (Sen. Bill No. 40).) Pursuant to the directions in Senate Bill No. 40, the court sentencing rules were also amended, effective May 23, 2007. (See Cal. Rules of Court, rules 4.420, 4.421, 4.423.) Defendant was sentenced on May 2, 2007, subsequent to the effective date of Senate Bill No. 40 and before July 19, 2007, when the decisions in Black and Sandoval were filed.
Sections 1170 and 1170.3 of the DSL were further amended by Assembly Bill 1539, effective January 1, 2008, and operative January 1, 2009. (Stats. 2007, ch. 740, § 2 (Assem. Bill No. 1539).) For our analysis, the Assembly Bill did not effect changes beyond those made to the DSL in Senate Bill No. 40. In response to the Legislature’s amendment of the DSL, the Judicial Council amended the trial court sentencing rules, effective May 23, 2007. (Cal. Rules of Court, rule 4.405, et seq.; see People v. Sandoval, supra, 41 Cal.4th at pp. 836, 843, 847, fns. 5 & 8.)
In Sandoval, the Supreme Court adopted a judicial reformation procedure for resentencing defendants on remand following findings of Cunningham error. The Sandoval court held that, on remand, the defendant should be sentenced “in a manner consistent” with the recent amendments to sections 1170 and 1170.3 (Sen. Bill No. 40) and pursuant to the amended court rules. (Sandoval, supra, 41 Cal.4th at p. 846.)
The court in Sandoval summarized the effect of Senate Bill No. 40’s amendments to section 1170. It said that the new provisions and the amended court rules required that at sentencing, the trial court was to select one of the existing triad of determinate terms set out as punishment for a particular crime: a lower, middle, or upper term. The trial court had full discretion to choose the one term among the triad that it deemed appropriate to the crime and to the offender. (§ 1170; see Sandoval, supra, 41 Cal.4th at p. 853.) The term was to be selected in conformity with the criteria set out in the amended court rules. The trial court was required to specify its reasons for its sentencing choice, but it was not required to cite the ultimate facts to support a decision as it was under prior law, or to weigh aggravating and mitigating circumstances. Senate Bill No. 40 removed the provision making the middle term the presumptive term of imprisonment. (Sandoval, supra, at pp. 846-847.)
The court in Sandoval said that the trial court’s selection of one of the triad of terms was to be reviewed for an abuse of discretion, and a trial court abused its discretion only when it failed to exercise discretion as required by law, or it relied upon circumstances irrelevant to its decision or constituting an improper basis for decision. (Sandoval, supra, 41 Cal.4th at pp. 847-848)
The decision in Sandoval also addressed the ex post facto effect of the judicial remedy it adopted. The court observed that if the ex post facto clauses applied to judicial decisions, then the new sentencing procedure created only the most speculative and attenuated risk of increased punishment. However, the court held that it was well established that the ex post facto clauses do not apply to judicial decisions. And, insofar as due process limits the judicial reformation of a statute so as to comply with the federal and state Constitutions, the provisions in the particular statutes setting out punishment provide sufficient notice of the punishment to be imposed so as to comply with due process. (Sandoval, supra, 41 Cal.4th at pp. 853-857.)
III. The Analysis
There are two flaws in appellant’s contention.
At the outset, it is settled that where two of several convictions are reversed on appeal for trial error, a trial court is empowered to resentence a defendant. (People v. Henderson (1963) 60 Cal.2d 482, 495-497; accord, People v. Hanson (2000) 23 Cal.4th 355, 357, 366.) On remand, the trial court is entitled to reconsider its entire former sentencing scheme and restructure the sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1259; People v. Savala (1983) 147 Cal.App.3d 63, 68-70, overruled on another point in People v. Foley (1985) 170 Cal.App.3d 1039, 1044.) The only limitation is that of double jeopardy. After the appellant has obtained an order for a new trial, a trial court is limited to imposing a sentence no greater than that originally imposed. (People v. Craig (1998) 66 Cal.App.4th 1444, 1452.) Thus, the trial court here was unhampered during resentencing by its former choice of middle-term punishment for the insurance fraud. At resentencing, it properly exercised its discretion pursuant to the new provisions in Senate Bill No. 40 in considering which of the three DSL terms to impose and in selecting as the principal term the doubled upper term of five years for insurance fraud.
Appellant does not explain why he concludes that the trial court was not empowered to resentence appellant pursuant to the three strikes sentencing scheme. The jury made four true findings of the truth of the prior convictions that triggered the use of the three strikes sentencing scheme. The trial court pursuant to Romero, supra, 13 Cal.4th 497 struck three of the four findings of prior convictions. The trial court was thus mandated to impose a doubled term of imprisonment based on the one remaining prior conviction of a serious or violent felony. (§§ 667, subds. (b)-(i); 1170.12.)
Furthermore, as the People point out, appellant’s contention assumes that resentencing occurred pursuant to the judicial reformation procedure in Sandoval, supra, 41 Cal.4th at pages 843 to 852. However, the record demonstrates that the trial court explicitly applied the provisions in Senate Bill No. 40 at resentencing. Although the Senate Bill No. 40 provisions are identical to the judicial reformation procedure the court adopted in Sandoval, resentencing here was not pursuant to Sandoval, but pursuant to Senate Bill No. 40. Appellant launches no challenge in his appeal to resentencing pursuant to Senate Bill No. 40.
In response to the arguments the People make in their respondent’s brief, appellant asserts that (1) the record fails to disclose that the trial court actually resentenced appellant pursuant to Senate Bill No. 40, and even if it did, there was Cunningham error, and (2) “resentencing [appellant] under such a scheme would deny him due process of law and violate the prohibition against ex post facto laws.”
As to the claim of Cunningham error, there is no ambiguity in the trial court’s comments. The trial court explicitly applied the new provisions in Senate Bill No. 40. “[T]he United States Supreme Court repeatedly has made clear in the line of decisions culminating in Cunningham that it ‘ha[s] never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. [Citations.] . . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.’” (Sandoval, supra, 41 Cal.4th at p. 844, quoting from United States v. Booker (2005) 543 U.S. 220, 233 and noting a similar conclusion in the decision in Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 871].) Thus, the trial court’schoice of a term complied with the demands of Apprendi, Blakely, and Cunningham.
As appellant was sentenced pursuant to the Senate Bill No. 40 sentencing scheme, we decline to reach appellant’s claims that sentencing him to an upper term pursuant to the former DSL provisions, or pursuant to Black and Sandoval, violates the Sixth Amendment and Cunningham.
As for appellant’s ex post facto claim, we can dispose of it briefly. The decision in Sandoval, supra, 41 Cal.4th at pages 853 to 856 addresses appellant’s claim in dicta. In addressing that claim, the Sandoval court included an analysis of the decision in Miller, supra, 482 U.S. at pages 435 through 436. The Sandoval court concluded that a sentencing scheme such as that enacted by Senate Bill No. 40 “‘create[s] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment . . . and such conjectural effects are insufficient’” to establish there is an ex post facto effect to applying this new law. (Sandoval, supra, at p. 854.) The court also said that “the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to—and would not be expected to—have the effect of increasing the sentence for any particular crime.” (Sandoval, supra, at p. 855.)
“Although dicta of the California Supreme Court does not control our decisions, it ‘carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic. [Citations.]’ [Citation.]” (People v. Smith (2002) 95 Cal.App.4th 283, 300.) The judicial reformation procedure addressed in Sandoval, supra, 41 Cal.4th at pages 843 through 852 and the changes that Senate Bill No. 40 made to section 1170 are identical sentencing schemes. The Sandoval court’s ex post facto analysis appears to be logical and compelling when considered in light of the pertinent authorities. (See California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 509; People v. Delgado (2006) 140 Cal.App.4th 1157, 1166.) While the court in Sandoval ultimately reached a conclusion that the ex post facto clauses does not limit judicial decision-making, before reaching that conclusion, the court conducted a full ex post facto analysis as to whether the proposed judicial reformation procedure, which was identical to Senate Bill No. 40, would operate as an ex post facto law. It concluded that it would not. Based on the reasoning in Sandoval, we are compelled to reach the same conclusion.
Also, due process did not prohibit the instant trial court from applying the provisions of Senate Bill No. 40 to appellant at resentencing. (Sandoval, supra, 41 Cal.4th at pp. 856-857.) In 1999, when appellant committed insurance fraud, section 550, subdivision (a)(1), provided for a triad of punishment: two, three or five years in state prison. (§ 550, subd. (c)(1).) Also, the Three Strikes law mandated the imposition of a doubled term of punishment when a jury found true that the accused had suffered one prior conviction of a serious or violent felony. (§§ 667, subds. (b)-(i), 1170.12.) This statutory notice was sufficient to afford appellant due process. (See Sandoval, supra, at p. 857.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.