Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF103546, Edward D. Webster, Judge.
Mark L. Christiansen, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
INTRODUCTION
In an unpublished opinion in case No. E038475, we reversed defendant’s convictions on counts 3, 4 and 5, and affirmed his conviction on counts 1, 2 and 6. (Counts 1 and 2 are first degree murder, in violation of Penal Code section 187, subdivision (a); count 6 is unlawful possession of a firearm, in violation of Penal Code section 12021, subdivision (a)(1).) (All further statutory citations refer to the Penal Code.) We remanded the cause for retrial on counts 3, 4 and 5, or in the alternative, if the prosecution elected not to retry those counts, for resentencing on the remaining counts.
The prosecutor elected not to retry counts 3, 4 and 5; the court dismissed those counts in the interest of justice. The court adopted the sentence it originally imposed as to counts 1, 2 and 6: A term of life without the possibility of parole on count 1, with a consecutive term of 25 years to life for a firearm enhancement pursuant to section 12022.53; a consecutive term of life without the possibility of parole on count 2, with a consecutive term of 25 years to life for a firearm enhancement pursuant to section 12022.53; and a term of three years on count 6, with a four-year gang enhancement pursuant to section 186.22, subdivision (b) and a one-year prior prison term enhancement pursuant to section 667.5, subdivision (b), for a total determinate term of eight years. The court adopted its prior restitution and parole revocation fines. The court reaffirmed defendant’s presentence custody credit for 586 days, and directed the prison to calculate defendant’s credits “from here on out.”
Defendant filed a timely notice of appeal. He contends that the trial court made a number of errors in resentencing him. Primarily, the errors are ministerial in nature, requiring only amendment of the abstract of judgment and correction of the sentencing minutes. As to those contentions, we agree. We do not agree with defendant’s contention that he was entitled to a jury determination of the factor the court relied upon to impose the upper term on count 6.
DISCUSSION
1. Calculation of Presentence Credits
The parties concur that the trial court was required to calculate the number of days defendant spent in custody through the date of resentencing and to award credits for the number of actual days served. We agree. (People v. Buckhalter (2001) 26 Cal.4th 20, 40-41.)
2. The Sentence on Count 6 Is Stayed
At the original sentencing hearing, the court ordered that “[a]ll determinate terms will be stayed pending completion of the life-without-parole term.” On resentencing, the court stated that it was reimposing the previous sentences as to counts 1, 2 and 6, and adopted its statement and reasons given at the original sentencing hearing, with the only difference being that it would not sentence defendant on counts 3, 4 and 5. Defendant contends that by adopting its prior sentence on count 6, a determinate term, the court intended to stay the sentence on count 6. The Attorney General contends that the court made its intentions in that regard unclear, in that after having stated that it would reimpose the identical sentence on count 6, the court went on to say that defendant either would, or perhaps would not, serve the determinate sentence before the life terms.
The court was obligated to impose no greater sentence on count 6 than it originally imposed, unless the original sentence was unauthorized. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) There was no indication at the sentencing hearing that the court believed that a stayed determinate sentence on count 6 was unauthorized, and the Attorney General does not contend that the original order staying the determinate sentences, including the sentence on count 6, resulted in an unauthorized sentence. Therefore, despite the court’s digression about whether a determinate term is served before or after an indeterminate term, we presume that the court realized that it was required to stay the term on count 6 and that it intended to do so. We will direct the trial court to amend the abstract of judgment to show that the sentence on count 6 is stayed.
3. Correction of the Abstract of Judgment and the Minutes of June 22, 2007, to Reflect the Sentence Actually Imposed
The parties concur that neither the current abstract of judgment nor the sentencing minutes accurately reflects the sentence imposed by the court. Again, we agree.
The abstract of judgment shows a four-year gang enhancement on count 1 and a 10-year gang enhancement on count 6. Defendant is correct that the court never orally pronounced any gang enhancement on count 1. At the original sentencing hearing, the court noted that as to count 1, the gang enhancement—which, as to a life sentence, is a minimum parole eligibility period of 15 years (§ 186.22, subd. (b)(5))—was meaningless in connection with a sentence of life without the possibility of parole. It did not purport to impose a four-year enhancement. On resentencing, the court imposed the same sentence on count 1 as previously and again made no reference to a four-year enhancement. On remand, therefore, we will direct the court to delete the four-year enhancement on count 1 from the abstract of judgment.
Similarly, the court did not impose a 10-year gang enhancement on count 6. Rather, it imposed a four-year enhancement on that count. The court also imposed a one-year enhancement pursuant to section 667.5, subdivision (b). The total determinate term, accordingly, is eight years, not eighteen. On remand, we will direct the court to ensure that the abstract of judgment correctly reflects a four-year enhancement pursuant to section 186.22, subdivision (b) on count 6 only, and a total determinate term of eight years.
The minutes dated June 22, 2007, state that the court imposed a “total indeterminate sentence of 18 years plus two consecutive terms of 25 years to Life [sic].” It goes on to state that “[t]wo terms of 25 years to life are without the possibility of parole.” The minutes must be corrected nunc pro tunc to reflect the count’s oral pronouncement of judgment: A term of life without the possibility of parole, with a consecutive term of 25 years to life, on count 1; a consecutive term of life without the possibility of parole, with a consecutive term of 25 years to life, on count 2; and a determinate term of eight years, stayed, on count 6, consisting of the upper term of three years, a consecutive term of four years pursuant to section 186.22, subdivision (b), and a consecutive term of one year pursuant to section 667.5, subdivision (b).
4. The Parole Revocation Fine
In our opinion in the prior appeal we held that it was error to impose a parole revocation fine in connection with a sentence of life without the possibility of parole and expressly ordered the trial court not to impose a parole revocation fine on remand. We noted there that although the court orally imposed such a fine, the fine was not included in the abstract of judgment. At the resentencing hearing, the trial court stated that it adopted the previously imposed restitution and parole revocation fines. It did not expressly impose a parole revocation fine. Neither the resentencing minutes nor the current abstract of judgment reflects a parole revocation fine. We therefore assume that the court understood that it was not to impose such a fine and that it did not intend to do so. We will remind the court not to include a parole revocation fine in the amended abstract of judgment.
5. Defendant’s Right to a Jury Trial Was Not Violated
Defendant contends that his federal constitutional right to have a jury determine any facts used to impose upper terms on count 6 and on the accompanying gang enhancement was violated. The Attorney General contends that the trial court’s reliance on defendant’s unsatisfactory performance on parole was permissible, in that it falls within the exception for recidivism.
In Blakely v. Washington (2004) 542 U.S. 296, 301, the United States Supreme Court reaffirmed its earlier holding in Apprendi v. New Jersey (2000) 530 U.S. 466, that any fact, other than the fact of prior conviction, which is used to increase the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In People v. Black (2007) 41 Cal.4th 799, the California Supreme Court held that the prior conviction exception extends beyond the mere fact of the conviction and includes “other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819; see also People v. McGee (2006) 38 Cal.4th 682, 700-709.) The facts that defendant was on parole at the time of the current offense and that his performance on parole was unsatisfactory are both facts which arise out of the fact of a prior conviction, and are so closely related to the prior conviction that they come within that exception to the Apprendi/Blakely rule. Thus, the upper terms were supported by factors which did not need to be found by a jury.
DISPOSITION
We affirm the judgment but remand the cause to the trial court with the following directions:
1. Calculate the number of actual days defendant spent in custody up to and including the date of resentencing (June 22, 2007);
2. Amend the abstract of judgment to do all of the following:
(a) delete the four-year enhancement on count 1 and delete the 10-year enhancement on count 6;
(b) reflect a total determinate term of eight years, consisting of the upper term of three years on count 6, a four-year enhancement on count 6 pursuant to section 186.22, subdivision (b), and a one-year enhancement pursuant to section 667.5, subdivision (b);
(c) reflect that the determinate term is stayed;
(d) award actual custody credits through June 22, 2007.
3. Ensure that the abstract of judgment does not include a parole revocation fine.
4. Correct the minutes of June 22, 2007, to reflect the court’s oral pronouncement of judgment, to wit, a term of life without the possibility of parole, with a consecutive term of 25 years to life, on count 1; a consecutive term of life without the possibility of parole, with a consecutive term of 25 years to life, on count 2; and a determinate term of eight years, stayed, on count 6, consisting of the upper term of three years, a consecutive term of four years pursuant to section 186.22, subdivision (b), and a consecutive term of one year pursuant to section 667.5, subdivision (b).
The superior court is directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: Gaut, J., King, J.