Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05CF0128, James Patrick Marion, Judge.
Charlotte E. Costan, 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, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Charles Dewey Cage appeals from his 22-year sentence, raising two issues. First, defendant argues, and the Attorney General agrees, that the trial court could not impose both a one-year sentence for a prior prison term enhancement, and a five-year sentence for a prior serious felony strike conviction enhancement, when the same conviction was the basis for both enhancements. The trial court should have stayed imposition of the prior prison term enhancement sentence.
Second, although the trial court erred by using the same prior conviction as a serious felony strike enhancement and as the articulated aggravating factor justifying the imposition of the upper term sentence, we affirm as modified because it is not reasonably probable a more favorable result to defendant would have been reached in the absence of this error.
Statement of Facts and Procedural History
This is the second time this case has been before this court. Our earlier opinion included the following statement of facts:
“Because of the limited nature of the issues raised on appeal, we provide an abbreviated statement of the facts of the case. On January 10, 2005, Jerry Herd was renting a room at the California Suites Inn in Santa Ana. Defendant and Susan O. arrived at Herd’s room, and went into the bathroom together for about five minutes. Defendant and Susan then lay down on a blanket on the floor, while Herd lay down on the bed. Herd described hearing the sound of someone being hit six or seven times, heard defendant say ‘I’m going to break [your] God damn . . . jaw,’ and heard Susan ask, ‘like a child just barely audible, “Why are you hitting me?” More of a whine.’ When Herd sat up, he saw defendant hit Susan in the face about four times. Herd asked defendant why he was hitting Susan and told him to stop.
“At that point, both defendant and Susan were naked. Defendant told Herd he was ‘training’ Susan. Defendant, whose penis was erect, told Herd he had tried to engage in sexual intercourse with Susan, but he could not. Herd left the room and called the police.
“Santa Ana Police Officer David Yettaw arrived and entered the room using a passkey. Officer Yettaw saw defendant and Susan on the floor, covered by a sleeping bag. There was blood on the pillow on which Susan’s head was resting, and her face was ‘extremely swollen.’ Officer Yettaw could smell alcohol on Susan’s breath. He asked defendant what had happened, and defendant replied Susan had been in an accident a couple of days earlier. (Herd had testified Susan did not have any facial injuries when she arrived at the motel room that night.)
“Susan admitted she had been drinking on January 10, 2005. Paramedics took Susan to the hospital, where it was determined she had a blood alcohol level of .17 percent. In addition to facial bruising and swelling, Susan had strangulation marks on her neck, bruising on her arms and legs, and injuries and tears to her vaginal area. A penile swab obtained from defendant revealed Susan’s DNA.
“Susan testified she was neither romantically nor sexually interested in defendant, and did not consent to sexual intercourse with defendant on January 10, 2005. Before January 10, Susan had not engaged in sexual intercourse for approximately one and one-half years.
“Defendant denied hitting Susan or attempting to rape her. He claimed he fell asleep on the bed and Susan was gone when he awoke. Defendant said he again fell asleep, and he awoke when he heard Susan’s voice; at that time, her face had been badly beaten. Defendant also testified that when Susan went to the bathroom, she fell off the toilet into the bathtub, resulting in ‘all kind of blood all over.’
“Defendant was charged in an information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) [count 1]); rape by use of drugs (id., § 261, subd. (a)(3) [count 2]); and assault with intent to commit a sexual offense (id., § 220 [count 3]). The information alleged, in connection with count 1, that defendant inflicted great bodily injury on the victim (id., § 12022.7, subd. (a)), and defendant had a prior conviction for a serious and violent felony (id., §§ 667.5, subds. (b) & (c), 667, subd. (a)(1)).
“A jury convicted defendant on all three counts, and found true the great bodily injury enhancement allegation. Defendant waived his right to a jury trial on the prior conviction allegation, and the court found it to be true.
“The trial court sentenced defendant to a total term of 33 years. On count 2, the court imposed a term of 16 years, which was double the upper term of eight years. On count 1, the court imposed a term of eight years, which was double the upper term of four years, to be served consecutive to the sentence on count 2. The court also imposed a three-year term for the great bodily injury enhancement, also to be served consecutively to the sentence on count 2. For the prior conviction, the court added five years under Penal Code section 667, subdivision (a)(1), and one year under section 667.5, subdivision (b). The court stayed the sentence on count 3, pursuant to section 654.” (People v. Cage (Jan. 18, 2007, G036772 [nonpub. opn.].)
We reversed defendant’s conviction for assault with a deadly weapon (count 1) and the related enhancement for causing great bodily injury, because as a matter of law, defendant’s hands could not be deadly weapons. (People v. Cage, supra, G036772.)
On remand, the trial court sentenced defendant to a total term of 22 years’ imprisonment. The court imposed the upper term of eight years on count 2, doubled to 16 years because defendant had a prior strike, as it had done at the first sentencing hearing. The court stayed defendant’s sentence on count 3 pursuant to Penal Code section 654. The court then added five years to the sentence for defendant’s prior serious felony strike conviction (Pen. Code, § 667, subd. (a)(1)), and one year for the prison prior (id., § 667.5, subd. (b)). Defendant again appealed.
Discussion
I.
The one-year prior prison term enhancement should have been stayed.
At defendant’s resentencing hearing, the trial court imposed a one-year enhancement for defendant’s prior prison term and a five-year enhancement for a serious felony strike conviction. These two enhancements were for the same prior conviction. Defendant argues, and the Attorney General agrees, that one prior conviction cannot be used to impose a serious felony enhancement under Penal Code section 667, subdivision (a)(1), and a prior prison term enhancement under section 667.5, subdivision (b). (People v. Jones (1993) 5 Cal.4th 1142, 1153.) The trial court should have imposed the one-year enhancement under Penal Code section 667.5, subdivision (b), and then stayed it. (People v. Lopez (2004) 119 Cal.App.4th 355, 363-364; Cal. Rules of Court, rule 4.447.) We direct the trial court to do so on remand.
II.
Did the imposition of the upper term and an enhancement violate Penal Code section 1170, subdivision (b)’s prohibition against dual use of facts in sentencing?
Defendant also argues the trial court violated Penal Code section 1170, subdivision (b) by relying on “the same strike prior as the single factor justifying imposition [of] the upper term on count 2 that it used to enhance [defendant]’s sentence pursuant to section 667.”
Penal Code section 1170, subdivision (b) provides in part as follows: “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 and 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.” (Italics added.)
At defendant’s second sentencing hearing, the trial court identified only the strike prior as a factor for selecting the base sentence: “[T]he court is going to sentence him on count 2 to 16 years. I’m going to double the eight years base term. [¶] The factor would be the prior conviction that the court did hear that he suffered this prior conviction, and it involved violence, and that’s the factor the court is going to aggregate.” The only conviction relied on by the trial court was the conviction used to impose the five-year prior strike enhancement sentence. This was error. (People v. Barker (1986) 182 Cal.App.3d 921, 939-940.) In addition, the upper term could not be based on the “violence” of the prior strike because the jury did not make such a finding. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 863-864].)
Before remanding for resentencing yet again, however, we must determine whether it is reasonably probable a result more favorable to defendant would have been reached in the absence of the trial court’s error. (People v. Avalos (1984) 37 Cal.3d 216, 233.) When the trial court imposes an upper sentence without stating any proper aggravating factors, despite the statutory presumption for the middle term, whether or not we reverse and remand for resentencing depends on whether we can determine if “the improper factor was determinative for the sentencing court.” (Ibid.)
At the first sentencing hearing, the trial court explained the aggravating factors justifying the imposition of the upper term as follows: “So the aggravated term will be 16 years. The reasons being: the crime involved a great deal of violence; the defendant struck the victim several times in the face causing numerous facial injuries; the victim in [this] case was obviously particularly vulnerable; she was unconscious and nonresponsive. Obviously, that’s part of the rape. She’s also homeless and having mental problems herself; [¶] the defendant’s prior convictions as an adult are numerous. He sustained at least six misdemeanors and two felony convictions; they’ve been extremely violent convictions; defendant’s prior history on probation/parole shows several violations . . . . So 16 years is selected.”
At the second sentencing hearing, the court stated, “It was my intent at the time [of the first sentencing hearing] to max out Mr. Cage. . . . [¶] . . . [¶] . . . I still want to max out Mr. Cage.” The only factor identified by the trial court at the second sentencing hearing was the prior serious felony strike conviction.
Defendant’s prior history of convictions and record on probation and parole could have been considered by the trial court at the second sentencing hearing, and were explicitly considered at the first sentencing hearing. At the first sentencing hearing, the trial court also relied on several factors that did not survive the Supreme Court’s review of California’s sentencing scheme in Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856]. Only a single aggravating factor is necessary for the trial court to properly impose the upper term sentence, however. (People v. Black (2007) 41 Cal.4th 799, 813.) At the second sentencing hearing, the trial court expressly reiterated its intention to impose the upper term sentence on defendant. Under these circumstances, and the record before us, we are confident the trial court would impose the upper term based on defendant’s criminal history (other than the single prior strike it relied on) and his unsatisfactory performance on probation and parole. The trial court’s error was harmless, and we therefore affirm the remainder of defendant’s sentence.
Disposition
We direct the trial court to impose the one-year enhancement under Penal Code section 667.5, subdivision (b), and then stay it. We further direct the trial court to prepare an amended abstract of judgment to reflect this modification and forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.