Opinion
NOT TO BE PUBLISHED
Superior Court No. MA035541 County of Los Angeles Robert J. Schuit, Judge
Stephen M. Hinkle, 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, Senior Assistant Attorney General, Lance E. Winters, Lawrence M. Daniels, Supervising Deputy Attorneys General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Francisco D. Campos appeals the judgment following his conviction for inflicting corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a)), and his admission that he had served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced him to the five-year upper term for the offense, and imposed and stayed a one-year sentence for the prior prison term enhancement. Citing Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), Campos contends that imposition of an upper term sentence based on aggravating factors found by the trial court violated his constitutional right to a jury trial. Having received supplemental briefs on the effect of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), we conclude that imposition of the upper term sentence did not violate Campos's right to a jury trial.
All statutory references are to the Penal Code.
Campos also contends that the trial court improperly imposed a domestic violence fine (§ 1203.097), and respondent contends that staying the sentence for the prior prison enhancement was unauthorized. We agree with both contentions.
We will strike the domestic violence fine and remand for resentencing on the prior prison term enhancement. Otherwise, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Campos and Cherokeena Bonner were married but not living together. Bonner was pregnant with their third child. After visiting relatives, Campos and Bonner drove to a quiet street where they talked and had consensual sex. Campos had been drinking wine. They got into an argument and Bonner walked away to telephone a friend and ask the friend to pick her up.
Campos ran up behind Bonner, and punched her on her head. Bonner fell to the ground where Campos continued to hit her on the head, face and chest, and also kicked her in her stomach. Bonner begged him to stop, fearing injury to their unborn child. Campos told her to get up and find the car keys she had dropped. Campos slapped her and "socked" her when she had difficulty finding her keys. Bonner suffered a swollen eye and mouth that required stitches, bruises to her chest, scratches, and injuries to her toe and back. She had blurred vision and headaches for two weeks.
Campos was convicted after a jury trial. In imposing the upper term sentence, the trial court found as aggravating factors that (1) the crime involved "great violence, great bodily harm, threat of great bodily harm, [and] a high degree of cruelty, viciousness, or callousness;" (2) Campos engaged in a pattern of violent conduct indicating a serious danger to society; (3) Campos's prior convictions were "numerous and of increasing seriousness;" and Campos served a prison term and was on probation at the time of the offense.
DISCUSSION
No Cunningham Error
Campos contends that the trial court violated his constitutional right to a jury trial by imposing the upper term sentence based on aggravating circumstances that were not found true by the jury beyond a reasonable doubt. We disagree.
Cunningham holds that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]" (Cunningham, supra, 127 S.Ct. at p. 860.) The United States Supreme Court concluded that, under California's Determinate Sentencing Law, the prescribed statutory maximum sentence is the middle term. (Id., at p. 871.)
Black II and Sandoval interpret Cunningham as permitting imposition of an upper term sentence without jury findings when one aggravating circumstance found by the court is established in accordance with the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466, and Blakely v. Washington (2004) 542 U.S. 296. (Black II, supra, 41 Cal.4th at pp. 805-806, 813; Sandoval, supra, 41 Cal.4th at pp. 836-837.) The "imposition 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." (Black II, at p. 816.) Moreover, the prior conviction exception "include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Black II, at p. 819; see also People v. Yim (2007) 152 Cal.App.4th 366.)
Here, more than one legally sufficient aggravating circumstance has been admitted by the defendant and "justified based upon the defendant's record of prior convictions." The trial court found that Campos's prior convictions were "numerous and of increasing seriousness," that he served a prior prison term, and that he was on probation at the time of the current offense. These are proper factors established by Campos's admission of the prior prison term allegation, and his criminal history as set forth in the probation report. We find no merit in Campos's argument that his offenses were not numerous or of increasing seriousness because he had only two prior felony convictions, and were not of increasing seriousness because his most recent prior conviction was for the same domestic violence offense. The record amply supports the conclusion of the trial court.
The court also found aggravating circumstances that do not qualify under Cunningham, including the finding of great bodily harm and "cruelty, viciousness, or callousness." But, "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 and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Black II, 41 Cal.4th at p. 813.)
Based on the foregoing, we will not address respondent's argument in its supplemental letter brief that any error under Cunningham was harmless.
Domestic Violence Fine Must be Stricken
Campos contends the trial court erred by imposing a $400 domestic violence fine, respondent concedes, and we agree. Section 1203.097, subdivision (a)(5) imposes the fine when a defendant is convicted of domestic violence and is placed on probation. Because Campos was sentenced to prison, the fine is unauthorized and must be stricken. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
Resentencing Required For Prior Prison Term Enhancement
Respondent argues the trial court erred by imposing and staying the one-year prior prison term enhancement. (§ 667.5, subd. (b).) We agree. A trial court may either impose or strike a prior prison term enhancement, but may not impose the enhancement and stay its execution. (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) The trial court's stay resulted in a legally unauthorized sentence, subject to correction for the first time on appeal. (Ibid.; People v. Irvin (1991) 230 Cal.App.3d 180, 190.)
The record is unclear as to whether the trial court was willing to strike the enhancement, and no statement of reasons was provided to support that action. If a trial court exercises its discretion to strike an enhancement pursuant to section 1385, subdivision (a), the reasons for the exercise of discretion must be set forth in the minutes. (People v. Bradley, supra, 64 Cal.App.4th at p. 391.) Limited resentencing is therefore required to allow the trial court to impose or strike the one-year prior prison term enhancement pursuant to section 1385, subdivision (a). (Id., at pp. 392, 401; People v. Irvin, supra, 230 Cal.App.3d at pp. 192-193.)
DISPOSITION
The $400 domestic violence fine is stricken, and the matter is remanded to the trial court with directions to impose or strike the one-year prior prison term enhancement. The clerk of the superior court is directed to prepare an abstract of judgment reflecting these actions, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.