Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA026941, William J. Birney, Jr., Judge.
Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
Because the issues on appeal solely address sentencing issues, we dispense with a recitation of the facts concerning defendant’s substantive offense.
This case returns to us after our previous remand for resentencing (B181524). In 2004, a jury convicted defendant and appellant Rogelio Cabrera (defendant) of a 1994 attempted murder (Pen. Code, § 664/187 ) and found that he personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced defendant to life in prison with the possibility of parole with a 13-year consecutive sentence based on a 10-year enhancement for personally using a firearm, and a three-year enhancement for personally inflicting great bodily injury. The trial court also imposed a $1,000 parole revocation fine under section 1202.45. Defendant appealed contending that his 10-year sentence on the firearm enhancement and parole revocation fine violated the prohibition against ex post facto laws in the United States and California Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) Defendant also contended that the trial court’s imposition of the upper term sentence for the firearm enhancement violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We agreed with defendant’s ex post facto argument, but rejected his Blakely argument, and remanded for resentencing.
All statutory citations are to the Penal Code unless otherwise noted.
On remand, the trial court sentenced defendant to five years in prison for the firearm use enhancement, five years being the upper term under section 12022.5, subdivision (a) at the time he committed his offense. The trial court did not modify its previous award of a total of 639 days of presentence credit, consisting of 426 days of actual custody credit and 213 days of conduct credit.
On appeal, defendant contends that the upper term sentence for the firearm use enhancement violates Blakely, supra, 542 U.S. 296, and that the trial court erred in failing to award him actual custody credit for the period from the date of his initial sentencing to and including the date of his resentencing. In our opinion filed December 5, 2006, we affirmed the upper term sentence for the firearm enhancement under section 12022.5, subdivision (a) and ordered the abstract of judgment modified to reflect 889 days of actual custody credit.
We requested supplemental briefing from the parties addressing the issue of whether defendant was awarded an extra day of presentence conduct credit. Because the trial court improperly awarded defendant an additional day of presentence conduct credit, we ordered the abstract of judgment modified to reflect 212 days of conduct credit.
Defendant filed a petition for review in the California Supreme Court. The Supreme Court granted review and deferred briefing pending further order of the court. On September 12, 2007, the Supreme Court transferred this case back to us with directions to vacate and reconsider our decision in light of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. We affirm the judgment.
DISCUSSION
I. Defendant’s Upper Term For The Firearm Use Enhancement
Defendant contends that his five-year upper term sentence for the firearm use enhancement under section 12022.5, subdivision (a) violates Blakely, supra, 542 U.S. 296 because it was based on the trial court’s finding that the manner in which he used his firearm was “mean, vicious [and] cowardly, one of the worst I have seen” and was not based on facts found by the jury.
In our prior opinion, we stated that this language described the manner in which defendant committed his offense. However, because the trial court was imposing an upper term sentence on the firearm use enhancement and not on the substantive offense, it appears that the trial court was describing the manner in which defendant used the firearm.
In Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham), the United States Supreme Court held that California’s determinate sentencing law violated the Sixth Amendment insofar as it authorized trial judges, rather than juries, to make factual findings that expose defendants to upper term sentences. (Id. at pp. 868-871.) Following Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held 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.” (Id. at p. 813.) Further, “under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. Citation. Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements . . . the upper term sentence is the ‘statutory maximum.’” (Ibid.) “[I]mposition 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.” (Id. at p. 816.)
We review Cunningham error for prejudice under the harmless beyond a reasonable doubt standard for federal constitutional error. (People v. Sandoval (2007) 41 Cal.4th 825, 839.) If we conclude, “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, the Sixth Amendment error properly may be found harmless.” (Ibid.)
As noted above, the trial court imposed the upper term for the firearm use enhancement because it found that the manner in which defendant used the firearm was “mean, vicious [and] cowardly.” At the sentencing hearing, the trial court stated, “I want to say on this record I hope this defendant never walks the streets again. [¶] What he did was mean, vicious, cowardly, one of the worst I have seen. He is a mean, little man, a vicious, little man who fired four bullets into his wife and she lay on the ground on her back. He never deserves, never deserves to get out of prison. [¶] He deserves to be in that prison cage for the rest of his life, and I certainly hope that’s what transpired. [¶] If anybody is entitled to the high term in this resentencing, he is entitled to it.”
The prosecutor then asked the trial court if it was using all the factors it found in defendant’s initial sentencing. The trial court responded, “If my words a few moments ago weren’t sufficient, all of the observations I made with regard to [defendant] when I sentenced him initially are adopted and only strengthened in my mind in this resentencing.” At that initial sentencing hearing, the trial court stated it was imposing the upper term because, defendant “was an abusive husband to the victim, his wife. She finally left him. And he in effect stalked her on the night in question and in the dark of the night attacked her and attempted to kidnap her. A struggle ensued. She fell to the ground. [¶] And on the ground on her back, as we saw bloody pictures, he pumped four bullets into her, one through her jaw, one through her right hand, one through her left arm elbow area and one above her belly button, which she displayed to the jury. [¶] For that mean, cruel, vicious cowardly act, this court certainly selects the highest term of imprisonment for this portion . . . .” We construe the trial court’s statements as imposing the upper term based on the aggravating circumstance in California Rules of Court, rule 4.421(a)(1) that “The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.”
On our own motion, we take judicial notice of the reporter’s transcript of defendant’s initial sentencing hearing from appeal number B181524.
The upper term for defendant’s firearm use was proper because the jury found that defendant personally inflicted great bodily injury on his wife. This single finding by the jury made defendant eligible for the upper term. (Black, supra, 41 Cal.4th at pp. 813, 816; Cal. Rules of Court, rule 4.421(a)(1).)
Moreover, we hold that even if there was Cunningham error, any such error was harmless beyond a reasonable doubt. At defendant’s initial sentencing hearing, which the trial court specifically adopted in defendant’s second sentencing hearing, and at defendant’s second sentencing hearing, the trial court imposed the upper term for defendant’s firearm use because defendant shot his wife four time as she lay on the ground. Because that aggravated use of the firearm was the basis upon which the trial court concluded that defendant’s firearm use was “mean, vicious [and] cowardly,” defendant had an incentive to dissuade the trial court from that depiction of his firearm use but did not object. It is clear beyond a reasonable doubt that the jury would have found that the manner in which defendant used the firearm – firing four shots into his wife as she lay on the ground – “disclos[ed] a high degree of cruelty, viciousness, or callousness” under California Rules of Court, rule 4.421(a)(1).
Defendant also contends that the trial court’s findings on the upper term based on a preponderance of evidence rather than proof beyond a reasonable doubt is structural error requiring automatic reversal. Respondent failed to address this contention. Cunningham error is not structural error (see Washington v. Recuenco (2006) 548 U.S. ___, 126 S.Ct. 2546, 2553 [“Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error”]), but instead, is subject to harmless error analysis (People v. Sandoval, supra, 41 Cal.4th at p. 839).
II. Defendant’s Credits
A. Actual Custody Credit
“[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.” (People v. Buckhalter (2001) 26 Cal.4th 20, 29.) When a trial court resentences a defendant, it is “obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.” (Id. at p. 37.) Defendant correctly contends that the trial court erred when it resentenced him because it failed to award him actual custody credit for the period from the date of his initial sentencing to and including the date of his resentencing. Respondent concedes the error.
Defendant was initially sentenced on January 20, 2005. At that time, the trial court awarded defendant 426 days of actual custody credit and 213 days of conduct credit. Defendant was resentenced on April 28, 2006. At that time, the trial court failed to award defendant any additional actual custody credit. The period from January 20, 2005, to and including April 28, 2006, is 463 days. The abstract of judgment is ordered modified to reflect a total of 889 days of actual custody credit.
B. Conduct Credit
Presentence credits are calculated under section 4019. (People v. Brown (2004) 33 Cal.4th 382, 405.) “Under section 4019, presentence conduct credit is calculated ‘by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]’ (People v. Fry (1993) 19 Cal.App.4th 1334, 1341 [24 Cal.Rptr.2d 43].)” (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.) In our credit calculations, we include the date of arrest (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124) and the date of sentencing (People v. Smith (1989) 211 Cal.App.3d 523, 525-526). We treat a partial day in custody as a whole day for calculation purposes. (People v. Smith, supra, 211 Cal.App.3d at p. 526.)
Defendant committed his offense – attempted murder – on June 1, 1994. Section 2933.1, which limits presentence conduct credit for certain offenses listed in subdivision (c) of section 667.5, including attempted murder (§ 667.5, subd. (c)(12)), did not become effective until September 21, 1994 (Stats. 1994, ch. 713 (A.B. 2716), § 1), and thus does not operate to limit defendant’s presentence conduct credit.
At the time that defendant was initially sentenced, the trial court awarded him a total of 639 days of presentence credit consisting of 426 days of actual custody credit and 213 days of conduct credit. For those 426 days of actual custody credit, defendant was entitled to an additional 212 days of conduct credit: 426 divided by 4 rounded down equals 106, multiplied by 2 equals 212. The parties agree that the trial court erred in awarding defendant 213 days of conduct credit.
Defendant was not entitled to an award of presentence conduct credit from the trial court under section 4019 for the additional 463 days he spent in actual custody in state prison between his initial sentence and resentencing. (People v. Buckhalter, supra, 26 Cal.4th at pp. 29-30, 33-34.) The Department of Corrections is to calculate credit for that period under the scheme for earning credit applicable to persons incarcerated in state prison. (Id. at p. 31.)
DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered modified to reflect 889 days of actual custody credit and 212 days of conduct credit. The clerk of the superior court is directed to forward the corrected abstract of judgment to the Department of Corrections.
We concur: TURNER, P. J., ARMSTRONG, J.