Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, John L. Davidson, Judge, Super. Ct. No. SCD154530.
AARON, J.
I.
INTRODUCTION
Appellant Grady Harris appeals from a sentence the trial court imposed on remand after a prior appeal. Harris was convicted of one count of attempted murder, one count of robbery, two counts of attempted robbery, and two counts of assault with a semi-automatic firearm. The trial court originally sentenced Harris to an aggregate term of 101 years four months to life in state prison.
Harris appealed his conviction and sentence. In an unpublished opinion, this court affirmed the convictions, but remanded the matter for resentencing after concluding that the trial court failed to exercise its discretion in determining whether to impose concurrent or consecutive terms. (People v. Harris (July 15, 2005, D044208) [nonpub. opn.].)
On remand, the trial court resentenced Harris to 101 years four months to life in state prison. Harris now challenges the court's imposition of the upper term on count two, on the ground that the court imposed the upper term in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely)and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We conclude that the trial court erred in considering a factor that was neither found by a jury nor admitted by Harris to impose the upper term. However, we further conclude that under the particular circumstances of this case, the error was harmless.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because the issues in this appeal arise from the resentencing, we provide only a limited review of the facts underlying Harris's convictions, taken from our previous appellate decision.
In late July 2000, Ivan Rubio, Francisco Lopez and Danielle Soto traveled from Yuma, Arizona to San Diego to visit Soto's father and to buy higher grade marijuana than was available in Yuma. The three met Harris, Harris's friend Jonathan Flowers, and a third, unidentified man in the Mission Beach area of San Diego. Harris told the group that he could obtain marijuana for them and gave Soto his cellular telephone number. Harris and his friends then left Rubio's group.
Later that evening, Harris and his friends met with Rubio and his friends at a 7-Eleven store. Harris joined Rubio and his group in their vehicle, and they all drove to an alley. Flowers and the other man followed in another car.
Harris told Rubio and Rubio's friends that he was going to go get the marijuana. Harris then left for a brief time and entered a nearby apartment. Lopez became uneasy with the situation and gave his wallet, which contained between $400 and $500 in cash, to Rubio. When Harris returned, he pulled out a semi-automatic handgun, pointed it at Rubio, and demanded that Rubio give him money. When Rubio turned to run away, Harris fired at him. The bullet glanced off of Rubio's head. Rubio fled. As he was running away, he threw Lopez's wallet in the street. At the same time, Flowers "rushed" Lopez and demanded money. As Lopez attempted to flee, Harris shot him twice. Rubio, Lopez, and Soto were able to flee to nearby houses, where the residents called police.
Harris was eventually arrested in Michigan in 2002 and was returned to San Diego for trial.
B. Procedural background
1. Harris's trial and original sentence
On December 11, 2003, a jury convicted Harris of first degree attempted murder (Pen. Code, §§ 664, 187, subd. (a)); robbery (§ 211); two counts of attempted robbery (§§ 664, 211); and two counts of assault with a semi-automatic firearm (§ 245, subd. (b)). The jury also found true five allegations of personal infliction of great bodily injury (§ 12022.7, subd. (a); two allegations of personal use of a firearm (§ 12022.5, subd. (a)(1); four allegations of discharge of a firearm (§ 12022.53, subd. (c); and four allegations of discharge of a firearm causing great bodily injury or death (§ 12022.53, subd.(d)). On December 22, 2003, the trial court found true the allegations that Harris had suffered a prior serious felony conviction (§ 677, subd. (a)), and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
Subsequent statutory references are to the Penal Code unless otherwise indicated.
The court sentenced Harris to state prison for an aggregate term of 101 years four months to life. The base term for the sentence was the upper term of nine years, doubled, on count two (attempted murder).
2. The first appeal
Harris appealed his conviction and sentence, contending, among other things, that the trial court prejudicially erred in imposing the upper term, under Blakely, supra, 542 U.S. 296, because the court relied on facts not found by the jury or admitted by Harris to impose a sentence that exceeded the middle term. Harris also argued that the imposition of consecutive sentences violated the principles announced in Blakely.
On July 15, 2005, this court affirmed the judgment, including the imposition of the upper term. This court also rejected Harris's claim that imposition of a consecutive sentence violated Blakely, but determined that it appeared that the trial court failed to recognize that it had discretion to impose concurrent, rather than consecutive terms. This court thus vacated the sentence and remanded the matter to the trial court to allow the trial court to exercise its discretion to impose concurrent or consecutive terms on counts three and five, and their respective firearm enhancements.
3. Resentencing
Following remand, on March 6, 2006, the trial court again sentenced Harris to an aggregate term of 101 years four months to life, exercising its discretion to impose concurrent sentences. The court also reimposed the upper term on count two.
4. The second appeal
Harris filed a timely notice of appeal on April 17, 2006.
On appeal after resentencing, Harris again asserts that the trial court violated his rights under Blakely, supra, 542 U.S. at page 303, by imposing a sentence above the statutory maximum based in part on the fact that Harris "played a leadership role" in the crimes, a fact not found by the jury nor admitted by Harris. Harris concedes that at that time of his resentencing, his claim was foreclosed by the California Supreme Court's opinion in People v. Black (2005) 35 Cal.4th 1238, certiorari granted, judgment vacated, and cause remanded sub nom. (Black v. California (2007) ____ U.S. ____ [127 S.Ct. 1210].) Two days after the People filed the respondent's brief in the case, the United States Supreme Court issued its opinion in Cunningham, supra, 127 S.Ct. 856, which abrogated Black. Harris addressed the effect of Cunningham in his reply brief.
This court requested that the parties submit supplemental briefs addressing whether, in light of Cunningham, Harris may challenge the trial court's imposition of the upper term in this second appeal, despite the fact that the issue was previously decided against Harris in his first appeal. In their supplemental brief, the People concede that Cunningham represents a significant change in the law that presents an exception to the "law of the case" doctrine, and thus, that Harris may challenge in this appeal the trial court's imposition of an upper term. The People requested an opportunity to further address the issues raised by the Cunningham decision. We granted the request, and also permitted Harris to file a response to the People's supplemental briefing on Cunningham. The parties filed supplemental briefing on the matter, and we now address Harris's claim of error.
III.
DISCUSSION
Harris contends that the trial court committed reversible error in sentencing him to an upper term of nine years, doubled, on count two, on the basis of facts not found by the jury. We conclude that one of the factors on which the trial court relied to impose an upper term sentence on count two was constitutionally impermissible. However, in view of the court's comments at the time it imposed sentence, comments that indicate the court was intent on giving Harris the longest sentence allowable under the law, the use of this impermissible factor did not prejudice Harris.
A. Additional background
At resentencing, the trial court found the existence of "several aggravating factors" to support imposition of the upper term. The court commented that it "couldn't find any mitigating circumstances whatsoever in the crimes themselves," and noted that the aggravating factors included: (1) the fact that Harris "robbed more than one person;" (2) that he "was found guilty of attempted murder of a separate individual;" (3) that "there [were] three separate victims;" (4) that Harris "clearly played a leadership role in what took place in the alleyway with respect to the three victims involved;" (5) and "the fact that he was armed with a gun at the time and that [the] gun was discharged."
B. Harris has waived any argument that some of the factors were improper on nonconstitutional grounds
In his opening brief, Harris asserts, without setting forth any argument, that four out of the five aggravating factors on which the court relied were improper under the sentencing statutes and Rules of Court. For example, Harris states, "The first three factors all relate to the fact that there were multiple victims in the incident. This is not a valid aggravating factor listed in California Rules of Court, rule 4.421." He goes on to assert, "The last factor enunciated by the trial court, that appellant was armed with and discharged a weapon, was the basis of three separate enhancements totaling 75 years to life in state prison. Therefore, under rule 4.420 (c) and Penal Code section 1170, subdivision (b), this factor was not available to be used as an aggravating factor upon which selection of the upper term could be based." This is the full extent of Harris's argument on the matter.
"'[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.]" (People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9.) "Because defendant's 'unelaborated citation[]' to the [California Rules of Court] 'add[s] nothing to [his] argument' [citation], we '"pass it without consideration"' [citation]." (Ibid.)
However, even if Harris had not waived these issues by failing to adequately present an argument on appeal, he has nevertheless waived any such arguments by failing to object to the use of these factors at the time of sentencing. (See People v. Scott (1994) 9 Cal.4th 331, 353 ["[T]he waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included . . . are cases in which . . . the court purportedly erred because it double-counted a particular sentencing factor . . . ."].)
Harris concedes in his reply brief that even if this court were to consider his original argument that the court could not use the fact that there were multiple victims to impose the upper term because this factor is not listed in California Rules of Court, rule 4.421, the California Supreme Court recently rejected a similar argument in People v. Calhoun (2007) 40 Cal.4th 398 [holding that an upper term sentence may be imposed based on the fact that there were multiple victims, even if the defendant has been convicted of separate crimes for each victim]. To be clear, Harris has not challenged the use of the factors related to multiple victims on the basis that these factors are impermissible under Blakely and Cunningham, but only on the ground that they are improper under the Rules of Court. Further, it appears that the court's use of the factors related to multiple victims and the fact that Harris discharged a gun does not implicate Blakely and Cunningham, because these factors are based on facts that are inherent in the jury's verdict.
C. The trial court committed harmless error in relying on an aggravating factor that was neither found by the jury nor admitted by the defendant
In his reply brief, Harris appears to recognize that his sole remaining cognizable claim on appeal is that the court erred in relying on the fact that Harris "played a leadership role" in committing the crimes as an aggravating factor to impose an upper term sentence. Harris contends that because this fact was not found by the jury, "[i]mposition of the upper term based on that fact was improper under Cunningham, Blakely . . . and Apprendi v. New Jersey (2000) 530 U.S. 466."
1. Applicable law
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court held that the imposition of an upper term sentence under California's determinate sentencing law (DSL), based on neither a prior conviction nor facts found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United States Constitution:
"California's determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term' sentence. The facts so found are neither inherent in the jury's verdict nor embraced by the defendant's plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does." (Cunningham, supra, 127 S.Ct. at p. 860.)
The Cunningham court reasoned:
"As this Court's decisions instruct, 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. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) [Apprendi]; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) [Ring]; Blakely [, supra,] 542 U.S. 296; United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) [Booker]. '[T]he relevant "statutory maximum,"' this Court has clarified, 'is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.' Blakely, 542 U.S., at 303-304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham, supra, 127 S.Ct. at p. 860.)
The Cunningham court reversed the defendant's upper term sentence because "the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial." (Cunningham, supra, 127 S.Ct. at p. 860.)
In response to Cunningham, the Legislature recently passed an amendment to the DSL, which was signed into law by the Governor on March 30, 2007. (See § 1170, as amended by Stats. 2007, ch. 3, § 2.) The act became effective immediately upon its signing. (Stats. 2007, ch. 3, § 7 ["This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect."].) The Legislature amended section 1170 to give trial courts full discretion to impose the lower, middle, or upper term sentence, effectively increasing the "statutory maximum" from the middle term to the upper term. (Compare § 1170, subd. (b), as amended by Stats. 2007, ch. 3, § 2 ["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"] with former § 1170, subd. (b) ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime"].) At the time Harris was sentenced, the new law was not yet in effect. In our discussion, we consider the state of the law as it existed at the time of Harris's resentencing.
2. Analysis
a. The trial court erroneously relied on a constitutionally-impermissible factor in imposing the upper term
In this case, as in Cunningham, the trial court imposed an upper term sentence based on at least one fact that was neither found by the jury nor admitted by Harris—i.e., that Harris played a "leadership role" in the crimes. (See Cunningham, supra, 127 S.Ct. at p. 860.) Although Harris does not request any particular relief, we assume that the relief he seeks is reversal of the trial court's imposition of the upper term on count two. The People contend that the trial court relied on a number of permissible factors to impose the upper sentence, and that the presence of even a single permissible circumstance in aggravation is sufficient to authorize the imposition of an upper term sentence. The People further contend that even if the trial court erred in utilizing an impermissible aggravating factor to impose an upper term sentence, any Cunningham error was harmless because the jury would have found the impermissible aggravating circumstance true beyond a reasonable doubt and/or because it is possible to conclude beyond a reasonable doubt that the trial court would have imposed the upper term even in the absence of the lone impermissible factor.
We disagree with the People's argument that the existence of one or more permissible circumstances in aggravation elevated the statutory maximum to the upper term. However, in the particular circumstances of this case, we can conclude beyond a reasonable doubt that even in the absence of this single impermissible aggravating factor, the trial court would nevertheless have imposed the upper term based on the other four factors in aggravation.
b. The fact that there is evidence in the record that would provide a constitutionally permissible ground for exceeding the middle term does not authorize the imposition of an upper term sentence
The People maintain that although Cunningham "generally precludes a trial court from finding facts to impose an upper term sentence, and . . . holds that the middle term is the statutory maximum," there are still aggravating factors, such as those related to recidivism, on which a court may base an upper term sentence even without a jury finding. The People argue that where the record establishes the existence of any aggravating factor that constitutes a constitutionally permissible ground for imposing an upper term sentence, the imposition of an upper term is not error under Cunningham. The People accordingly maintain that because a single aggravating circumstance is sufficient to render a defendant eligible for an upper term under California law, imposition of the upper term is constitutionally permissible in all such cases, irrespective of the particular factors on which the trial court actually relied in imposing an upper term.
The People's argument is premised on the proposition that under the DSL as it stood at the time Harris was sentenced, the upper term was the statutory maximum in all cases in which a single constitutionally permissible aggravating factor existed. (See Black, supra, 35 Cal.4th at p. 1269 ["[T]he jury's findings pertaining to defendant's probation eligibility, and the trial court's findings pertaining to defendant's criminal record, were each sufficient to satisfy this statutory requirement [that there be at least one aggravating circumstance], thereby making the upper term the statutory maximum for the offense," italics added] (conc. & dis. opn of Kennard, J.).) However, as Cunningham makes clear, the statutory maximum under the DSL, prior to enactment of the amendment, was always the middle term. (Cunningham, supra, 127 S.Ct. at p. 868 ["In accord with Blakely, therefore, the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum"].) This is because facts inherent in a jury's verdict, a defendant's admission, or a defendant's prior conviction, were never sufficient, in and of themselves, under the DSL to authorize an upper term sentence. Rather, the DSL required that the trial court find that such facts constitute a circumstance in aggravation before the court could impose an upper term. (Cunningham, supra, 127 S.Ct. at p. 862 ["In sum, California's DSL, and the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts ─ whether related to the offense or the offender ─ beyond the elements of the charged offense," italics added].) This judicial factfinding is precisely what Cunningham prohibits.
Prior to the March 30, 2007 amendment to section 1170, the existence of a prior conviction, or the existence of a fact found by the jury or admitted by the defendant on which the trial court was authorized to impose an aggravated term under the DSL, did not raise the statutory maximum. Rather, in such a case, the trial court was authorized to sentence a defendant beyond the statutory maximum and impose an upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 868 ["Except for a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,'" italics added].) For this reason, we disagree with the People's suggestion that, prior to the recent amendment to section 1170, the upper term was the statutory maximum whenever the record reflected the existence of a single constitutionally permissible aggravating factor. Further, as Cunningham also made clear, under the DSL prior to its amendment, a court could exceed the statutory maximum only on the basis of a prior conviction, or facts found by the jury or admitted by the defendant. (Cunningham, supra, 127 S.Ct. at p. 860 ["As this Court's decisions instruct, 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"].)
c. The error does not require reversal
The People contend that any Cunningham error in this case was harmless. We agree with this contention, on the basis that the trial court indicated in no uncertain terms that it intended to impose the highest possible sentence the law would allow. Because the law does allow the court to impose the upper term based on a number of the factors the court relied on in imposing that term, there is no reason to believe the trial court would impose a different sentence based on only four, rather than all five, of the factors the court cited.
Although we disagree with the People's assertion that under the former version of the DSL, the existence of a single permissible aggravating factor raised the statutory maximum to the upper term, the People may be able to demonstrate that Harris suffered no harm from the court's error by establishing beyond a reasonable doubt either (a) that a jury would have found true all the impermissible aggravating circumstances on which the court relied, beyond a reasonable doubt, or (b), that the trial court would have exercised its discretion to impose the upper term based only on those aggravating circumstances that were inherent in the jury's verdict or admitted by the defendant, or that the jury would have found true beyond a reasonable doubt.
In this case, the trial court relied on four permissible factors and one impermissible factor. The court also determined that there were no factors in mitigation. Based on the court's statements at the time of Harris's sentencing, there is no doubt that even in the absence of the "leadership role" factor, the trial court would have imposed the upper term on count two. Specifically, the trial court repeatedly indicated a desire to impose the most severe term possible under the law, both in terms of the length of the underlying sentences and in terms of having the sentences run consecutively rather than concurrently. The court indicated that in view of Harris's prior record and his continual criminal conduct, it would be inappropriate to give Harris any benefit in imposing sentence. In all respects, the trial court imposed maximum terms, and refused to impose the sentences concurrently. Despite being given the opportunity to alter the sentence entirely, the trial court again concluded that a sentence of 101 years four months to life was the most appropriate sentence in light of all of the circumstances of the case. In imposing sentence, the court said:
"I also looked at [the defense attorney's] statement in mitigation again in deciding is this the appropriate sentence. I considered everything. [¶] As I indicated, I hesitate to use the same words which I used last time, which is 'I have no choice,' which I won't do because I realize that I do have a choice. However, I did feel, based upon Mr. Harris' entire criminal record, background and history, the fact that he was on probation at the time of these offenses and other factors that I've indicated, that Mr. Harris is a danger to himself and to society, that I should give him the maximum time allowable under the law, and that's what I decided was the most appropriate sentence in this case."
Because it is clear beyond a reasonable doubt that the trial court would have imposed an upper term sentence solely on the basis of the four constitutionally permissible aggravating factors, we conclude that the Cunningham error in this case does not require reversal of the upper term sentence imposed on count two.
Because we conclude that the court would have imposed the upper term sentence even without using the "leadership role" factor, we need not consider whether a jury would have found beyond a reasonable doubt that Harris played a leadership role in this crime.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.