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People v. Hibbs

California Court of Appeals, Third District, Sacramento
Apr 27, 2009
No. C058681 (Cal. Ct. App. Apr. 27, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. STEVEN MICHAEL HIBBS, Defendant and Appellant. C058681 California Court of Appeal, Third District, Sacramento April 27, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 06F07445

BUTZ, J.

A jury convicted defendant Steven Michael Hibbs of first degree burglary (Pen. Code, § 459 count one) and assault with a firearm, to wit, a handgun (§ 245, subd. (a)(2) count two). In connection with the assault offense, the jury found that defendant personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d).

Undesignated statutory references are to the Penal Code.

The court initially sentenced defendant on February 8, 2008, to state prison for an aggregate term of eight years, that is, the upper term of four years for the assault offense, a consecutive midterm of four years for the firearm use enhancement, and a stayed midterm sentence (§ 654) of four years on the burglary offense.

On February 14, 2008, the court recalled the sentence and commitment to change only the sentence imposed for count two, the assault offense (§ 245, subd. (a)(2)). The court resentenced defendant, reducing the four-year term on count two by one year, imposing the midterm of three years. It stated that “in all other respects the Court’s sentence remains in full force and effect,” noting that the aggregate sentence was then seven years.

Defendant appeals, contending “[t]he trial court’s refusal to state reasons for imposing the upper term sentence on count two [assault with a firearm] constitutes reversible error.” (Italics added.) Defendant argues his sentencing under the amended version of section 1170 constituted ex post facto punishment and violated his federal right to due process. He “requests that the judgment imposing the eight-year prison term be reversed and replaced by a seven-year prison term based on a middle term of three years for the principal term as to count two.”

In a one-page response, the Attorney General simply claims that defendant’s rights were not violated in that the trial court did, in fact, recall the sentence and impose the midterm of three years for the assault offense. The Attorney General requests that the abstract of judgment be corrected to reflect a seven-year rather than an eight-year sentence. The Attorney General does not otherwise respond to defendant’s contentions.

In a letter filed September 18, 2008, prior to filing his reply brief, defense appellate counsel represented that his copy of the reporter’s transcript did not include the pages covering the recall hearing and complained that the Attorney General failed to cite to the clerk’s transcript for the recall hearing. True, the Attorney General did not cite the clerk’s transcript but the recall hearing is reflected in the clerk’s transcript at page 15. Further, the abstract of judgment prepared by the clerk on February 15, 2008, the day after the recall hearing, reflects the midterm of three years for the assault offense.

In his reply brief, defendant acknowledges that the trial court imposed the midterm for the assault offense when it recalled the sentence but argues “nothing demonstrates the trial court cured its previous error of failing to provide a statement of reason[s] for its sentencing choice.” Defendant requests “that the judgment imposing the seven-year prison term be reversed.”

We conclude that the trial court performed its duty in stating reasons for its sentencing choice and shall affirm the judgment. The abstract of judgment filed February 15, 2008, reflects the three-year midterm imposed for the assault offense when the sentence was recalled but erroneously reflects a total prison term of eight years. We will order the abstract corrected to reflect a total state prison term of seven years.

FACTUAL AND PROCEDURAL BACKGROUND

Facts at trial

About 7:30 p.m. on August 26, 2006, G.W. left her home with her children and 15-year-old brother, N.T. Upon leaving, G.W. kept the lights on in the living room and on the porch. No one remained in the house when they left. After dropping her children off at their grandmother’s home, G.W. returned home with N.T. and her baby and noticed that the porch light was off. N.T. went inside the house and found that it had been ransacked. N.T. saw a person he later identified as defendant standing in the hallway and then running out the sliding glass door in the back of the house. N.T. chased defendant as he tried to go over the fence on the left side of the yard. Defendant then tried to go over the fence on the right side of the yard. When N.T. grabbed defendant, defendant hit N.T. in the back of the head. Defendant’s shirt came off and he dropped a cell phone and jewelry belonging to G.W. and N.T. N.T. chased defendant down the street and told him to stop. Defendant turned around and pointed a silver handgun in N.T.’s face, ordering him to “back up.” N.T. did so and defendant fled around the corner.

G.W. called the police who arrived within five minutes. Sacramento Sheriff’s Sergeant Robert Slabaugh found a 1994 Mercury sedan parked near G.W.’s house. A picture with defendant was next to the speedometer inside the car. G.W.’s diaper bag and DVD case could be seen inside the Mercury. G.W. reported to the officer that she had noticed the Mercury parked on the street, unoccupied, as she was leaving earlier in the evening.

Defendant was found sitting on the porch of a house, reading a newspaper. A car key in his pocket started the Mercury. Jewelry belonging to G.W. was found on the porch. After a field show-up, defendant asked for his jewelry and cell phone that he dropped near G.W.’s backyard.

Two days later, a silver handgun with no latent fingerprints was found on the ground next to a garbage can at a house located about one-half mile from G.W.’s house.

At trial, defendant testified and admitted breaking and entering into G.W.’s home. He knew no one was home because he knocked on the front door. He admitted taking a gold bracelet and a CD case containing DVD movies. When N.T. entered the home, defendant admitted he ran and tried to jump over a fence. He admitted his shirt had been ripped off. He claimed he lost his gold necklace and a cell phone near the fence. He denied striking N.T. He also denied pointing a gun at N.T., claiming he did not have one.

Sentencing

The probation report recommended an aggregate term of eight years four months, that is, the midterm of three years for the assault offense, the midterm of four years for the firearm use enhancement, and a consecutive one-third the midterm or 16 months for the burglary. In aggravation, the probation officer cited defendant’s use of a firearm (noting it was a potential enhancement), planning and sophistication, defendant’s violent conduct indicating a serious danger to society, defendant’s numerous prior juvenile adjudications, defendant’s unsatisfactory performance on juvenile probation, and the fact he was on juvenile probation when the current offenses were committed. Defendant’s prior juvenile history included juvenile adjudications: in 2001 for first degree burglary and misdemeanor theft; in 2002 for battery; in 2003 for resisting a peace officer; and in 2004 for driving without a license. The probation report also reflects that defendant is a daily user of methamphetamine.

Defendant filed a statement in mitigation. He had participated in programs while incarcerated (Relapse Prevention; Father Resource; ManAlive—Sacramento classes; Narcotics Anonymous, Substance Abuse; and domestic violence education) and had been psychologically evaluated by Dr. John Wicks. Defendant objected to the probation officer’s reliance upon his use of a weapon as an aggravating factor, claiming it was a dual use of facts since the court was required to impose the firearm use enhancement. Defendant also objected to the probation officer’s reliance upon factors not found true by a jury, in contravention of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), specifically the manner in which the crime was carried out which indicated planning, that defendant had engaged in violent conduct indicating a serious danger to society, and references to defendant’s juvenile record, claiming it was an issue before the California Supreme Court in People v. Nguyen. In mitigation, defendant claimed he was youthful (19 years old at the time of the offenses), had sustained no adult convictions, had a long history of substance abuse for which he had received no treatment, his family situation was dysfunctional, and that he was willing to participate in counseling. Defendant requested the mitigated term for both the assault offense and the gun enhancement and a concurrent sentence for the burglary offense.

People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007 (S154847, app. pending, argued Apr. 6, 2009).

In response to defendant’s statement in mitigation, the prosecutor conceded reliance upon firearm use would be a dual use of facts if the court sentenced on the firearm use enhancement in connection with the assault offense. The prosecutor claimed that defendant had prior opportunities for substance abuse counseling while on juvenile probation but had failed and committed the current offenses while on juvenile probation. The prosecutor cited defendant’s arrests for “numerous second degree burglaries as well as a misdemeanor driving under the influence” offense since the commission of the current offenses. The prosecutor claimed that defendant admitted he had been watching the victims before committing the current crimes, having parked a short distance away and waited until they were gone, which showed planning, sophistication, or professionalism. Further, the prosecutor argued that defendant had “sustained numerous juvenile petitions” including another first degree burglary during which he had stolen a firearm. The prosecutor found it especially “disturbing” since defendant was armed when he broke into the home of the current victims. The prosecutor requested consecutive sentencing.

At sentencing on February 8, 2008, the court stated that it had read both the statement in mitigation and the prosecutor’s statement in response as well as the probation report. The court allowed defense counsel to submit a report by Dr. Wicks as a defense exhibit. When asked if defendant was ready to proceed with sentencing, defense counsel responded, “Yes, Your Honor, with comment.” The court instructed defense counsel, “I don’t want you to make the same comments that you’ve already made. I’m well aware of them. If you have something new and different then let me hear about it.” After making corrections and ensuring all documents were included in her statement in mitigation, defense counsel started to respond to the prosecutor’s opposition. Defense counsel agreed that in the juvenile proceedings, defendant had been ordered to participate in a variety of programs but claimed there was no indication the programs had been completed. Instead, based on Dr. Wicks’ report, counsel argued very little had been done for a variety of reasons, and started to set forth some examples. The court interrupted and stated that it was interested in “new or different” points since it had read everything, commenting that defendant had a “very bad record.” Defense counsel added nothing further and the prosecutor submitted the matter.

The court found that the assault and burglary constituted a course of conduct and planned to stay sentence on the burglary. In imposing sentence for assault with a firearm, the court stated, “The upper term is selected after carefully reviewing the prior history of [defendant] and reviewing his present conduct.” The court then imposed the midterm for the firearm use enhancement and a stayed midterm sentence for the burglary offense. Defense counsel interrupted and stated, “I didn’t really finish. I didn’t finish in addressing I would at this point I would I would object to the imposing of the upper term based on Cunningham and Apprend[i] and Blakely, all those line of cases. [¶] I understand that the California Supreme Court has come back down with a decision in [the] People v. Black case. However, the only record the Court is relying on is the I assume [defendant’s] juvenile record[.] [I]s that the basis for the imposition of the upper term?” The court responded, “Please do not ask me. Just make your record. I’ve stated my reasons in the record. And you just make your record.” Defense counsel stated that she objected “because I’m as far as I can tell, Your Honor, that would be in violation of the United States Supreme Court decision.” The court “appreciate[d] [her] position.”

Cunningham, supra,549 U.S. 270 [166 L.Ed.2d 856]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi).

People v. Black (2007) 41 Cal.4th 799.

Six days later, on February 14, 2008, the court recalled the sentence and imposed the midterm for the assault with a firearm offense. The prosecutor objected but stated no ground for the objection. Defense counsel did not object.

DISCUSSION

Defendant contends the trial court erred in failing to provide a statement of reasons for its sentencing choices. We disagree.

As defendant argues, the trial court is required to provide a statement of reasons in simple language for its sentence choices, orally and on the record, in order to ensure meaningful appellate review. (§ 1170, subd. (b); Cal. Rules of Court, rules 4.406(a), 4.420.) The Judicial Council amended the sentencing rules to conform to the amended version of section 1170. Rule 4.420(a) provides that “the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted . . . .” The trial court must state reasons for its sentencing choices but it is no longer required to cite aggravating or mitigating factors or to weigh the same. (People v. Sandoval (2007) 41 Cal.4th 825, 846-847 (Sandoval); compare former rule 4.420 with rule 4.420, as amended May 23, 2007.) Contrary to defendant’s claim otherwise, the trial court’s reference to defendant’s prior history and present conduct satisfies the requirement. The trial court relied on defendant’s prior history, which included juvenile adjudications, poor performance on probation for the same, and the fact that he was on juvenile probation at the time of the current offenses. The trial court also relied upon defendant’s present conduct, which included convictions for first degree burglary and assault with a firearm with a finding of personal use of a firearm. The court stayed sentence on the burglary offense during which defendant had to have been armed since the jury found defendant assaulted N.T. with a firearm as N.T. chased defendant from the home.

Further rule references are to the California Rules of Court.

Defendant recognizes Sandoval rejected a claim that resentencing on remand under the amended version of the determinate sentencing law (DSL) violated the prohibition against ex post facto laws. (Sandoval, supra, 41 Cal.4th at pp. 853-855, 857.) Defendant argues Sandoval is inapplicable because the defendant in that case had been sentenced under the old DSL and here, defendant was sentenced under the amended version of the DSL when his offense occurred prior to the amendment. He also claims that retroactive application violates his federal right to due process. We reject defendant’s claims.

On February 8, 2008, the trial court imposed the upper term for the assault offense relying upon defendant’s prior history and his present conduct. On February 14, 2008, the trial court recalled the sentence and imposed the midterm for the assault offense. Both proceedings occurred after the amendment of section 1170 which grants trial courts broad discretion to impose any term in the triad by simply stating reasons for its sentencing choice. The upper term, not the middle term, is the statutory maximum that may be imposed and requires no additional factfinding. (Sandoval, supra,41 Cal.4th at pp. 850-851.)

To the extent the trial court relied upon defendant’s juvenile adjudications to impose the upper term, defense counsel objected in the trial court. Defendant raised the issue on appeal, failing to recognize the midterm was imposed on recall. The issue of whether juvenile adjudications may be relied upon for purposes of the three strikes law is pending before the California Supreme Court in People v. Nguyen, S154847. (See fn. 2, ante.)

“A change in substantive criminal law is retroactive if applied to cases in which the crime occurred before its enactment, but a change in procedural law is not retroactive when applied to proceedings that take place after its enactment.” (Sandoval, supra,41 Cal.4th at p. 845.) Sandoval did not hold that the amended version of section 1170 expressly applied to resentencing on remand but held that it was “appropriate” when resentencing on remand “to proceed under the procedure proposed by the Attorney General and adopted independently by the Legislature.” (Id. at p. 846.) To allow application of the amended version of section 1170 on resentencing on remand but not on sentencing in the first instance to a defendant whose crimes occurred prior to the amendment makes no sense whatsoever. No violation of the prohibition against ex post facto laws or due process occurred here. (Sandoval, supra,41 Cal.4th at pp. 855-857.)

In any event, the trial court’s sentencing choice did not contravene Cunningham. Cunningham held that the old DSL violated a defendant’s Sixth and Fourteenth Amendments by “authoriz[ing] the judge, not the jury, to find the facts permitting an upper term sentence” (Cunningham, supra, 549 U.S. at p. 293 [186 L.Ed.2d at p. 876]) since “the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum” (id. at p. 288 [186 L.Ed.2d at p. 873]). On recall, the trial court imposed the midterm for the assault offense for which no additional factfinding was required.

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment reflecting the total sentence of seven years and to forward a certified copy to the Department of Corrections and Rehabilitation. As corrected, the judgment is affirmed.

I concur: HULL, J.

I concur in the result: SCOTLAND, P. J.

Under People v. Towne (2008) 44 Cal.4th 63, reliance upon poor performance on probation may normally be relied upon as an aggravating circumstance because it is a circumstance that “arises out of a prior conviction and results from procedures that were conducted in accordance with constitutional requirements designed to ensure a fair and reliable result. Furthermore, the circumstance of . . . probation or parole status ordinarily is well documented in the same type of official records used to establish the fact and nature of a prior conviction.” (Id. at p. 81.) Thus, in determining whether a defendant committed an offense while on probation, “the trial court is not required to make any factual finding regarding the charged offense. It need only determine the period during which the defendant was on probation or parole and compare those dates to the date of the charged offense, as found by the jury. The trial court may find this aggravating circumstance to exist, without engaging in any factfinding regarding the charged offense. Accordingly, a trial court’s conclusion that the charged offense was committed while the defendant was on probation or parole, like a finding of a prior conviction, does not require judicial factfinding regarding the charged offense.” (Id. at pp. 80-81.) “[T]he aggravating circumstance that a defendant . . . was on probation or parole at the time the crime was committed may be determined by a judge and need not be decided by a jury.” (Id. at pp. 70-71.)

Here, reliance upon the fact that defendant was on probation when he committed the current offenses relates back to the juvenile adjudication, which did not have the constitutional guarantee of a jury trial. The trial court remedied any possible constitutional problem under Cunningham, and Apprendi and its progeny, when it imposed the midterm on recall. (Cunningham, supra,549 U.S. 270 [166 L.Ed.2d 856]; Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435].)


Summaries of

People v. Hibbs

California Court of Appeals, Third District, Sacramento
Apr 27, 2009
No. C058681 (Cal. Ct. App. Apr. 27, 2009)
Case details for

People v. Hibbs

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEVEN MICHAEL HIBBS, Defendant…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 27, 2009

Citations

No. C058681 (Cal. Ct. App. Apr. 27, 2009)