Opinion
G036752
4-30-2007
THE PEOPLE, Plaintiff and Respondent, v. ERIN ROBERT DARLING, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted Erin Robert Darling of driving recklessly while evading police, possession of a firearm by a felon, residential burglary, three counts of false imprisonment, two counts of cutting a telephone line, and kidnapping. The jury found defendant personally used a knife during the burglary and the kidnapping. In an earlier appeal in this case, we concluded substantial evidence supported the convictions and enhancements, but reversed for resentencing without the use of two out-of-state priors as strikes because they did not meet California prerequisites. (See People v. Darling (G032321, July 20, 2005) [nonpub. opn.] (Darling I).) Following resentencing, defendant now contends the trial court failed to understand it retained authority to strike one or both of his remaining California prior strikes or, alternatively, the court abused its discretion by failing to strike a strike. Defendant also argues the trial court erred in imposing consecutive sentences on most of his current convictions and, in any event, violated due process and the Sixth Amendment by making the factual determinations that resulted in consecutive sentencing. We conclude the Three Strikes law does not require, as the trial court believed, mandatory consecutive sentences on several of defendants convictions, and we therefore remand for a new sentencing hearing.
We do not fault the trial court in any respect, as the lone issue requiring reversal, out of many posed, is a close one requiring a determination that regularly "`threaten[s] judicial sanity" (People v. King (1993) 5 Cal.4th 59, 73), including our own. The vexing question at issue, which appears deceptively simple, is whether particular offenses have been committed on the "same occasion" or "aris[e] from the same set of operative facts . . . ." (Pen. Code, § 667, subd. (c)(6); all undesignated statutory references are to this code.)
I
FACTUAL AND PROCEDURAL BACKGROUND
For convenience, we restate from Darling I, supra, at pp. 2-5, our narrative concerning defendants commission of his offenses: "On April 21, 2001, around 5:30 p.m., police officer Dennis Fulton observed defendant make a dangerous left turn in front of oncoming traffic, narrowly avoiding a collision. Fulton pulled behind defendants Volvo and activated his overhead lights. One of the overhead lights was red, and the other blue. When defendant turned into a parking lot and exited without stopping, Fulton switched on his sirens. Defendant drove at a slow speed into a cul-de-sac, where he stopped the car, only to drive away when Fulton approached him on foot. After a pursuit in which defendant drove over sidewalks and lawns, sped through blind intersections, and weaved through traffic at 65 miles per hour in a 45-mile per hour zone, Fulton stopped defendant in another cul-de-sac.
"Defendant exited the Volvo and Fulton yelled, `Stop. Dont move. Show me your hands. He saw a chrome-colored semiautomatic pistol in defendants right hand. Defendant ran toward a group of apartment buildings, where Fulton lost him. Meanwhile, a bystander saw defendant hide the gun in some bushes.
"Dale Skiba lived in one of the nearby apartments with his elderly parents, Bill and Elizabeth, aged 91 and 83, respectively. Dale heard a `[b]anging of the screen and the door, his mother called out, `There is someone coming in, and suddenly defendant was in the home, locking the door behind him.
"He appeared `highly agitated, drawing a knife from his pocket as he advanced toward Dale. He unsheathed the blade. Dale backed into the living room, where defendant quickly commanded everyone to sit down, not move, and not make any noise. Frightened, Dale informed his parents a `home invasion robbery was taking place and instructed them to comply with defendants demands.
"Defendant tore a telephone out of the wall and severed the cord. He then ripped the wires out of a cordless phone in the living room. Next, he turned off the lights and closed the drapes in the living room, securing them shut with a vase. He also blocked the sliding door with a chair. During this time, defendant was `very aggressive and repeatedly pointed his knife at the Skibas. In an `angry [and] desperate voice, defendant again commanded the Skibas to `not make any sound, to sit still.
"Defendant sat on a bench within arms reach of the Skibas. When Dale and Elizabeth coughed because they had chest colds, defendant ordered them to be silent. He stated, `Ill do whatever it takes not to get caught, informing them he was H.I.V. positive and had `nothing to lose. Dale took these statements as threats.
"At one point, defendant mentioned he was injured, so Dale offered him a pillow and a glass of water. Elizabeth offered defendant some chocolates. Dale later explained his actions as an `[attempt] . . . to ensure . . . that [defendant] would view [them] in as human a fashion as possible, making it `less likely he would hurt or kill them. Dale also hoped defendant would `leave fingerprints and DNA behind on the water glass. Defendant ate a banana and placed $1.35 on the counter to `pay [his] debts. Elizabeth assured defendant the money was not necessary and he could have more food. Dale attempted to engage defendant in conversation. He asked defendant about his family. Again, Dale explained this as an attempt to minimize the likelihood of bodily harm or death.
"Defendant appeared sleepy and Dale tried to keep him awake by talking to him. Dale worried his parents could not endure the stress of a long detention and feared defendant `might react suddenly or irrationally if he awoke in their home. Dale did not try to escape when defendant seemed to doze because he knew his elderly parents could not escape with him.
"After about two and one-half hours, when the sound of police helicopters had ceased and darkness fell, defendant asked Dale if he wanted to drive him out of the area. Without Dales consent, defendant noted, it `might be considered kidnapping to force Dale to help him escape. Afraid to anger defendant by refusing his request, Dale agreed to drive defendant to the location of his choosing. Dales parents were very frightened for their son when he left with defendant.
"Defendant ordered Dale to stay close to him outside the apartment. As they walked, defendant became angry if Dale fell even a step behind. Dale knew defendant still had a knife, and he quickened his pace. Defendant took Dale across the street to the place where he had thrown the gun into the shrubbery. While defendant was looking in the bushes, Dale tried to signal to a neighbor something was wrong, to no avail.
"After defendant failed to find his gun, the two men climbed into Dales truck and defendant directed Dale to a gas station, where defendant fled. Dale returned to his parents and they immediately drove to the police station and reported the crimes.
"Five days later, the police arrested defendant, finding two knives in his possession, one of which he had drawn on Dale. They also found the handgun in the shrubbery where defendant had thrown it. The gun was loaded and had defendants fingerprints on it, as did the Volvo he abandoned, which also contained prescription medicine containers bearing his name, an empty gun case, and his wallet with picture identification and credit cards."
On remand from Darling I, the trial court conducted a new sentencing hearing at which it declined to dismiss defendants two prior California strikes, which consisted of a residential burglary in 1987 and grand theft involving a firearm in 1991. Defendants extensive record included misdemeanor convictions in Colorado in the early 1970s for exposing himself on at least seven occasions to minor girls, a fine for trespassing, and two "aggravated" robbery convictions in 1977. After five years in a Colorado prison, defendant moved to California. In February 1987, he was convicted of petty theft and in May 1987 he suffered his first strike for residential burglary, after he broke into a garage and stole approximately $3,000 worth of property. He also suffered a 1987 second degree burglary conviction for shoplifting clothing. Less than two months after his release in 1989, he returned to prison for a parole violation. And in 1991 he was again convicted for second degree burglary and several other crimes, including grand theft of a firearm. Defendant then suffered a series of misdemeanor drug convictions, including possession of a syringe, and returned to prison in 1994 after another second degree burglary conviction. He violated parole six times between 1996 and 1999, and the Department of Motor Vehicles suspended his license for driving under the influence.
In Darling I, we determined that these robbery convictions could not count as strikes for sentencing purposes because the elements of robbery in Colorado and California are different and no evidence in the record disclosed why Colorado authorities deemed the robberies to be "aggravated" felonies. On remand, the trial court properly considered the Colorado robbery convictions as prior convictions relevant to assessing defendants background, character, and prospects for reform.
Defense counsel urged the trial court to dismiss one or both of the prior strikes so defendant, almost 48 years old when convicted, could gain his release from prison in his 60s or 70s. Counsel emphasized, without "minimiz[ing] the effect it had on the victims," that defendant did not target the Skibas, attempted to treat them well, and his crime "wasnt intended to go this way" but came at "the end of a bad series of events that involved drug usage . . . ." Counsel also noted defendant cooperated with law enforcement by providing useful information once he was incarcerated. Unswayed, the trial court concluded: "[W]hen you look at the defendants prior record, his whole history, [and] the nature of the crimes here, the aggravated nature of the facts in this case outweigh in large measure any circumstances entitling the defendant to mitigation."
The trial court also concluded the Three Strikes law required consecutive sentences for most of defendants current offenses. (See §§ 667, subd. (c)(6) [legislative version of Three Strikes law]; 1170.12, subd. (a)(6) [initiative version].) The trial court explained that the driving while evading police offense, for example, "did not occur on the same occasion and did . . . not, in fact, arise under the same operative facts" as "the other crimes that ensued thereafter." The court observed that when defendant stopped driving and exited his vehicle, he chose "not [to] leave the gun in the car" and, while he did not "brandish[]" the weapon, defendant "definitely had it displayed when he . . . fled on foot," leading the court to conclude "this weapons violation did not occur within the meaning of the law on the same occasion and did not arise under the same operative facts" as the driving offense. The trial court therefore sentenced defendant to consecutive terms on the evasive driving and felon in possession counts.
The trial court similarly concluded the offenses defendant committed inside the victims apartment were distinct from one another and the driving and gun possession offenses in time, place, and their operative facts, requiring consecutive sentencing under the Three Strikes law. The court therefore sentenced defendant to consecutive terms for false imprisonment, cutting a telephone line, and kidnapping. The prosecutor conceded section 654 required a stay on the burglary count, as it was based on defendants alleged intent to commit one or more of the felonies occurring inside the residence. (See People v. Hester (2000) 22 Cal.4th 290, 294.)
As third and subsequent strikes, each felony count the court imposed carried a term of 25 years to life. The jury had convicted defendant of three counts for false imprisonment and two counts of cutting a telephone line, and the court ran two of the former and one of the latter concurrently. Together with two one-year enhancements for wielding a knife on the false imprisonment and kidnapping charges, and five-year terms for each of the two prior strikes, defendants total term came to 137 years to life. He now appeals.
II
DISCUSSION
A. Discretion to Strike Strikes
Defendant contends the trial court failed to realize the scope of its authority at the resentencing hearing included the discretion to strike one or both of his two prior strikes. (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) The contention is anomalous in light of the trial courts extended discussion of Romero and the trial courts observation, "I do have that discretion at this time . . . ." Defendant focuses on a comment by the trial court that "the evading and all of that . . . indicates to me that it would be an abuse of discretion to strike strikes." Defendant appears to interpret the trial courts use of the words "abuse of discretion" as akin to taking an appellate courts perspective. In other words, the trial court believed it could not strike the strikes as a matter of law because no reasonable decisionmaker would do so.
The trial court also recognized it had discretion to strike one or both of defendants prior strikes with respect to particular counts, rather than in toto. The court may consider how a Three Strikes sentence on one count will alter the defendants prospects for recidivism in deciding whether to consecutively impose on another count a potential life sentence under the Three Strikes law. (People v. Garcia (1999) 20 Cal.4th 490, 500.) Defendant does not challenge the trial courts decision not to exercise its discretion on this score.
We disagree with defendants creative interpretation of the trial courts comments. The trial courts use of the phrase, "abuse of discretion," does not show the court believed it was required as a matter of law to impose punishment for the prior strikes. The court made the remark in the context of correctly articulating the Romero standard, stating: "I have to look at the big picture here; and that includes the circumstances of the present offense, the particulars of the defendants background, character, and prospects. And this case is not outside the spirit of the Three Strikes law. So the motion to strike strikes pursuant to Romero is denied." As noted, before pronouncing sentence, the trial court observed, "I do have that discretion [to strike strikes] at this time" but, after a detailed consideration of defendants record, his latest crime, and his personal conduct in and out of prison, the courts statement that "to me . . . it would be an abuse of discretion to strike strikes" demonstrates the court understood it was not rendering a decision as a matter of law. (Italics added.) Instead, the court simply declined to exercise its discretion in defendants favor, a decision within the courts sentencing authority.
Changing tacks, defendant argues substantial evidence supported dismissing at least one strike, which "under the circumstances would not have been an abuse of discretion." Defendant misapprehends our standard of review. The issue is not whether some evidence supported his desired outcome at the sentencing hearing, but instead whether no evidence supports the trial courts decision not to strike a strike. Put another way, the touchstone for a trial courts ruling on a Romero issue, and for our review, is "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] schemes spirit, in whole or in part . . . ." (People v. Williams (1998) 17 Cal.4th 148, 161.) Our standard of review is deferential, not de novo; the issue is whether the trial courts decision falls outside the bounds of reason. (Id. at p. 162; see People v. Carmony (2004) 33 Cal.4th 367, 374.)
The Three Strikes law was "designed to increase the prison terms of repeat felons" within a spirit of "`"fair prosecution of crimes properly alleged." [Citation.]" (Romero, supra, 13 Cal.4th at pp. 504, 531.) As the trial court noted, defendants history of committing felony crimes dated back to two Colorado robbery convictions in the 1970s, bringing him within the anti-recidivist purpose of the law. Of particular concern, after his 1987 burglary conviction, defendant committed a 1991 grand theft involving a gun, and in 1994 suffered yet another burglary conviction. Although he did not, according to defense counsel, use the gun in the 1991 theft and he discarded his firearm in the midst of his present offense, his willingness to carry a prohibited weapon demonstrates a commitment to criminal endeavors.
Most importantly, as the trial court remarked, the gravity of his offenses culminated in a dangerous hostage and kidnapping confrontation, where he brandished a knife at his elderly victims and threatened to "`do whatever it takes not to get caught[.]" It may be true that defendants criminal history stemmed in part from drug addiction, including heroin, but he failed to address this problem when given the opportunity with multiple misdemeanor convictions. And while defendant showed a willingness to cooperate with authorities once in jail, the trial court could reasonably conclude at the time of resentencing that defendants prospects for reform outside prison were slim. In short, we discern no abuse of discretion.
B. Consecutive Sentences
As noted, the trial court stayed sentencing on the burglary count, imposed concurrent sentences on two false imprisonment counts and one count of cutting a telephone line, and sentenced defendant to consecutive sentences on all the remaining counts. Phrased differently, the trial court ran the three counts of false imprisonment concurrent to each other but consecutive to the other counts (except burglary) and did the same for the two counts of cutting a telephone line. In short, the trial court imposed five consecutive 25-years-to-life sentences for defendants offenses of reckless driving while evading police, prohibited gun possession, false imprisonment, cutting a telephone line, and kidnapping. Defendant contends the trial court erroneously concluded the Three Strikes law mandated each of these consecutive sentences. We agree in part, as we explain below.
The trial court imposed the consecutive sentences under section 667, subdivision (c)(6), which provides: "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to [this section]." (Bold and italics added; see also § 1170.12, subd. (a)(6) [identical language].) As our Supreme Court has explained, the foregoing language impliedly vests in the trial court discretion to impose concurrent — rather than consecutive — sentences for offenses that are committed on the same occasion or do arise from the same set of operative facts. (People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza); People v. Hendrix (1997) 16 Cal.4th 508, 513.)
In Deloza, the Supreme Court determined "the term `same occasion refers at least to a close temporal and spatial proximity between the acts underlying the current convictions." (Deloza, supra, 18 Cal.4th at p. 595.) There, the defendant entered a furniture store and committed four robberies "essentially simultaneously" by divesting four victims of their belongings in quick succession. (Ibid.) One of the victims had approached defendant as he held up the other three, but the court observed defendants "criminal activity was not thereby interrupted but merely continued with her as an additional victim." (Id. at p. 596.) Because the offenses "clearly" occurred on the same occasion within the meaning of the Three Strikes law, the Supreme Court ordered remand of the case to the trial court, which had "erroneously believed consecutive sentences were mandatory." (Id. at pp. 596, 600.)
In People v. Lawrence (2000) 24 Cal.4th 219 (Lawrence) by contrast, the Supreme Court agreed with the trial courts conclusion consecutive sentences were mandatory, and therefore reversed the contrary conclusion by the Court of Appeal. The defendant in Lawrence stole a bottle of brandy from a grocery store and fled on foot to a nearby neighborhood, where he jumped a backyard fence. (Id. at p. 228.) The homeowner, wielding a shovel, chased him back over the fence, tackled him, and the two men grappled until the homeowners fiancée approached with a baseball bat. The defendant struck the fiancée in the head with the brandy bottle before the police arrived and subdued him. (Id. at p. 224.) "Applying the `close spatial and temporal proximity test of Deloza," the Supreme Court "conclude[d] the aggravated assault upon [the fiancée], perpetrated two to three minutes or more after the theft from the market, at a location one to three blocks away (depending upon the flight route taken), was `not committed on the same occasion as the theft within the meaning of section 667, subdivision (c)(6)." (Id. at p. 229.)
Accordingly, the Lawrence court proceeded to analyze whether the defendants offenses did or did "not aris[e] from the same set of operative facts." (§ 667, subd. (c)(6).) The court answered this question in the negative because the defendants theft and assault shared no common elements or underlying acts, and the defendant completed the theft before assaulting the fiancée. The Supreme Court identified the following factors as bearing on interpretation of the phrase "same set of operative facts": "the nature and elements of the current charged offenses — for example, the extent to which common acts and elements of such offenses unfold together or overlap, and the extent to which the elements of one offense have been satisfied, rendering that offense completed in the eyes of the law before the commission of further criminal acts constituting additional and separately chargeable crimes . . . ." (Lawrence, supra, 24 Cal.4th at p. 233.) These factors sufficed to decide the matter there, but the court acknowledged the enumerated considerations were not exhaustive, noting "[t]here may be others." (Ibid.)
Under Lawrence, we see no other conclusion here but that the offenses defendant committed before entering the Skibas apartment (reckless driving while evading police and gun possession) occurred on a different occasion and under a different set of operative facts than the offenses he committed after he crossed the apartment threshold (false imprisonment, cutting telephone lines, and kidnapping). Simply put, when defendant stopped driving and soon thereafter discarded his gun, those offenses were complete. They did not share elements with the later offenses nor, being complete, did they involve facts that unfolded together with the later offenses and, based on the example set in Lawrence, the offenses preceding entry into the apartment were not temporally or spatially proximate to those defendant committed later.
Defendant argues the criminal acts he committed after he exited his vehicle occurred as he "was still in the process of reckless evasion." It appears defendant seeks to add "continue[d] evasion" to the list of Lawrence factors relevant to defining the applicable "set of operative facts." A solid majority in Lawrence itself, however, rejected this theory, finding "no basis for concluding the voters who enacted the initiative version of the [T]hree [S]trikes law (or the drafters of the virtually identical legislative version) nonetheless intended that all offenses a defendant chooses to commit while still in flight from the first crime scene should be excluded from the scope of the mandatory consecutive-sentencing provision." (Lawrence, supra, 24 Cal.4th at p. 229; compare id. at p. 241 (dis. opn. of Kennard, J., joined by Werdeger, J.) [reasoning under the "escape rule" that "[i]t is more than a little odd to conclude that a theft or robbery was not finished and was still in progress for purposes of accomplice liability and the felony-murder rule when a later offense was committed, and yet that the two offenses did not occur on the `same occasion for purposes of sentencing under the Three Strikes law"].)
Still, that a line of demarcation exists between the offenses defendant committed before and after he entered the apartment says nothing about whether the offenses on each side of that line were committed on the same occasion or arose out of the same operative facts with respect to each other. Addressing the later offenses first, we note the "continuous character" of false imprisonment. (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820.) In People v. Durant (1999) 68 Cal.App.4th 1393, cited favorably in Lawrence, the court observed that the "nature of a charged crime as being continuous or complete" bears on whether other offenses arise out of the same set of operative facts. (Durant, at p. 1406.) "For example," Durant explained, "[W]hen a robbery is charged, its continuous nature, its elements and the facts used to support those elements are the `operative facts underlying the commission of that crime. If another offense is committed while the facts underlying that robbery are unfolding, it will necessarily arise from the same set of operative facts as the original robbery." (Id. at pp. 1405-1406.)
Here, defendant cut two of the Skibas telephone lines during his false imprisonment of them, and his initial asportation of the lone kidnapping victim, Dale, arose during the same period. Thus, the acts constituting the elements of these offenses "unfold[ed] together" and "overlap[ped]" to such a degree (Lawrence, supra, 24 Cal.4th at p. 233) as to be virtually coextensive. Defendant did not "complete" or cease falsely imprisoning any of his victims "before" he undertook his subsequent crimes (see ibid.); rather, the false imprisonment facilitated and occurred in conjunction with his cutting of the telephone lines and kidnapping of Dale Skibas. Notably, the elements of these crimes are intertwined, as the cutting of the telephone lines facilitated the "imprisonment" of all three victims and extended the time in which defendant could kidnap Dale before help could be summoned. In sum, we conclude defendants crimes of false imprisonment, cutting the telephone lines, and kidnapping arose out of the same set of operative facts, and therefore the trial court should have determined whether to sentence defendant concurrently or consecutively for these offenses. (Ibid. [where Three Strikes law does not mandate consecutive sentences, decision rests in the trial courts "sound discretion"].)
Defendants offenses of driving recklessly while evading police and unlawfully possessing a firearm fall into a different category. We need not determine whether they arose from the "same set of operative facts" because we conclude defendant committed these offenses on the "same occasion," that is, within a closely-tied "temporal and spatial proximity," within the meaning of the Three Strikes law. (Deloza, supra, 18 Cal.4th at p. 595.) Of particular importance is the fact that defendant did not commit any "new and different offenses" with the gun once he exited his car. (Compare Lawrence, supra, 24 Cal.4th at p. 234 ["new and different" assault offense distinct in time and place from earlier theft].) Here, defendant did not, with the gun, personally threaten or endanger any additional, identifiable victims after he stopped his vehicle. (Compare id. at pp. 228-229 [emphasizing homeowner and fiancée as victims distinct from and subsequent to store employees and patrons victimized by theft].) Although defendant stopped his vehicle, his "criminal activity was not thereby interrupted" in a meaningful way, "but merely continued" (Deloza, supra, 18 Cal.4th at p. 596) for the brief period he retained the gun. In other words, the general public remained the same inchoate, potential victim of his prohibited possession inside and outside his vehicle.
Notably, defendant discarded his weapon within seconds after he exited his vehicle, thereby bringing his possession of the weapon within close temporal and spatial proximity to his reckless driving offense, and eliminating one means by which he posed a danger to the public. On these unique facts, we do not believe the intent behind the Three Strikes law mandates consecutive sentencing. (See Durant, supra, 18 Cal.4th at pp. 594 [anti-recidivism purpose of Three Strikes law necessarily aims at offenses "committed on different occasions"].) In short, because defendants continued gun possession for a brief period outside the car — perhaps moments — was tied together in close "temporal and spatial proximity" (id. at p. 595) with his possession inside the car and his reckless driving at that time, concurrent sentences on these offenses were an option at the trial courts discretion.
We do not in any way suggest, however, that consecutive sentences for defendants offenses of gun possession and reckless driving on one hand, or false imprisonment, cutting a phone line, and kidnapping on the other, are precluded under the Three Strikes law. Far from it. The factors bearing on consecutive versus concurrent sentencing remain for the trial court to evaluate. (Cal. Rules of Court, rule 4.425.) Accordingly, this determination is for the trial court to make on remand, in the spirit of the Three Strikes law and according to defendants particular background, present offenses, and prospects at the time of resentencing.
C. Right to a Jury Trial on Sentencing Factors
Defendant contends the trial court violated due process and his Sixth Amendment right to a jury trial when the court engaged in the factfinding necessary for its same occasion/same operative facts inquiry. We disagree. A crucial distinction exists between consecutive sentencing and upward departures from the former statutory norm of a midterm sentence. "While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses . . . . The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing." (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) In other words, even where the trial court determines the same occasion/same operative facts underlie the defendants offenses, the court may impose consecutive sentences. (§ 669; Lawrence, supra, 24 Cal.4th at p. 233.) This distinguishes Cunningham v. California (2007) 549 U.S. ___ , where the high court found imposition of the upper term based on judicial factfinding constitutionally infirm because a statutory presumption established the midterm as the maximum punishment authorized by the jurys verdict.
In the wake of Cunningham, the Legislature has recently eliminated the presumption in favor of the midterm. (See § 1170, subd. (b) ["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"].)
Here, although the sentencing court is required to state its reasons for imposing consecutive sentences (see Cal. Rules of Court, rule 4.406(b)), this requirement does not create a presumption or entitlement to a particular result. Rather, the statement of reasons provides for meaningful appellate review and serves to ensure that the sentencing court itself engages in an analysis of the sentencing problem. (In re Podesto (1976) 15 Cal.3d 921, 937.) Because no statutory presumption establishes concurrent sentences as the maximum punishment authorized by the jurys verdict, defendants constitutional challenge without merit.
III
DISPOSITION
We reverse the judgment with respect to the sentence imposed and remand the matter for a new sentencing hearing consistent with the views expressed herein.
We Concur:
BEDSWORTH, Acting P. J.
IKOLA, J.