Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF08177
ROBIE, J.
In 2008, defendant Orben Oliver Maniord pled no contest to committing a lewd and lascivious act on a five-year-old child, an offense he committed in 1996. The trial court dismissed the remaining counts of forcible rape and kidnapping with the purpose of rape. Subsequently, the court sentenced defendant to the upper term of eight years in prison.
On appeal defendant contends: (1) the court committed an ex post facto violation when it applied the 2007 amended version of Penal Code section 1170 to a crime committed in 1996; (2) the imposition of the upper term was based on disputed facts and thereby violated his Fourteenth Amendment due process right to a fair sentencing hearing; and (3) he received ineffective assistance of counsel when his attorney failed to object to the imposition of the upper term on due process grounds. Disagreeing with these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At some point between February and April 1996, defendant committed a lewd and lascivious act on the victim, a five-year-old girl. A friend of the victim’s mother, defendant removed the child from her home and brought her to his residence. According to the victim, defendant molested and raped her. After the abuse, defendant told the child to lie to her mother as to her whereabouts.
The victim did not report the crime until March 28, 2008, due to her fear of retaliation from defendant. In April 2008, defendant was charged with kidnapping for the purpose of rape, forcible rape, and committing a lewd and lascivious act on a child under the age of 14.
Defendant admitted taking the girl, committing lewd and lascivious acts, and telling her to lie; however, he denied the rape. Under a plea agreement, he pled no contest to the count of lewd and lascivious conduct and the court dismissed the other two charges.
In a timely manner, defendant filed a statement in mitigation, asking the court to consider his history of substance abuse, his early plea, and his psychological evaluation-risk assessment. In his statement, defendant did not submit a notice of intention to dispute factual contentions found in the probation officer’s report dated October 20, 2008. The prosecution did not submit a statement in aggravation.
At the sentencing hearing, the trial court did not consider defendant’s arguments for mitigation persuasive. In deciding to impose the upper term of eight years, the court first noted that the early plea of no contest pursuant to a plea agreement to avoid a possible life sentence was hardly a showing of remorse. When assessing defendant’s substance abuse problem, the trial judge considered “[t]he heinous nature of this offense, the trauma to this child, the fact of her age, the circumstances. And I think being on a drug run or drunk doesn’t begin to explain it, mitigate it or excuse it.” The court then dismissed defendant’s attempt to argue Blakely error; an argument that was not in the statement in mitigation.
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403].
In pronouncing the upper term of eight years, the court first considered circumstances relating to the crime under rule 4.421(a)(1) of the California Rules of Court: “The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” The court then contemplated the factors for aggravation with respect to defendant himself: prior convictions and defendant’s performance on probation. The court imposed the upper term sentence because the court found the circumstances in aggravation outweighed the circumstances in mitigation.
DISCUSSION
I
The Application Of Amended Penal Code Section 1170 To An Offense Committed Prior To The 2007 Amendment Did Not Violate The Prohibition On Ex Post Facto Laws
Defendant committed the offense in 1996 and was sentenced in 2008. He argues that the application of the amended version of Penal Code section 1170 to impose the upper term was an ex post facto violation because under the earlier version of Penal Code section 1170, he was presumptively entitled to the middle term. He contends the case should be remanded for resentencing under the version of Penal Code section 1170 in effect at the time of the offense. In accordance with People v. Sandoval (2007) 41 Cal.4th 825, 853-855 (Sandoval), we conclude the retroactive application of Penal Code section 1170 did not disadvantage defendant and therefore there was no ex post facto violation.
A
Penal Code Section 1170 Subdivision (b)
In 1996, when the offense was perpetrated, California’s determinate sentencing law, Penal Code section 1170, provided a presumptive middle term such that the upper term could be imposed only if the trial court found aggravating factors. “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.” (Stats. 1995, ch. 49, § 1.)
The Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466, 442 [147 L.Ed.2d 435, 469] considered “whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence... be made by a jury on the basis of proof beyond a reasonable doubt.” The court held that “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.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) This holding was reaffirmed in 2004 in Blakely v. Washington, supra,542 U.S. 296 [159 L.Ed.2d 403] where, despite the lack of sufficient additional findings, the trial court sentenced the defendant to 37 months beyond the statutory maximum. (Blakely, at pp. 296, 299 [159 L.Ed.2d at pp. 403, 411].) Reversing the judgment of the Washington Court of Appeals, the Supreme Court held the maximum sentence the judge may impose is one that may be pronounced “without any additional findings.” (Id. at pp. 300, 303-304, [159 L.Ed.2d at pp. 411, 413-414].) Thus, by 2004, the Supreme Court had determined that the Sixth Amendment required that any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to the jury. (Apprendi v. New Jersey, supra,at p. 490 [147 L.Ed.2d at p. 455]; Blakely, at pp. 303-304 [159 L.Ed.2d at pp. 413-414].)
In 2007 the Supreme Court addressed California’s determinate sentencing law in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. The court held the middle term was the statutory maximum sentence under the law because it was the maximum sentence that could be imposed based solely on the jury’s verdict. (Id.,at pp. 288-289 [166 L.Ed.2d at p. 873].) “Because the [determinate sentencing law] authorizes the judge, not the jury, to find facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent” and the bright-line rule established in Apprendi v. New Jersey, supra,530 U.S. at page 490 [147 L.Ed.2d at page 455]. (Cunningham,at pp. 288-289, 293 [166 L.Ed.2d at pp. 873, 876].) Thus, the 1996 version of the law was unconstitutional.
In response to the court’s decision in Cunningham, the California Legislature modified the law to provide the judge with full discretion when determining the appropriate term; the middle term was no longer the presumptive sentence. (Sandoval, supra, 41 Cal.4th at p. 836, fn. 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.” (Stats. 2007, ch. 3, § 2.) This amendment gave the court the discretion to choose among the triad of sentencing terms.
By its terms, the statute was effective only until January 1, 2008. (Stats. 2007, ch. 3, § 2.) In the latter half of 2007, however, the Legislature created another statute that provided for the same amount of judicial discretion as the previous version, effective January 1, 2008. (Stats. 2007, ch. 740, § 1.)
With respect to the choice of sentence, the version of Penal Code section 1170 in effect in November 2008 provided, “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.... In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports including... statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim... and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice.” (Stats. 2007, ch. 740, § 1.)
In Sandoval, supra, 41 Cal.4th at page 837, our Supreme Court was confronted with a defendant who had been sentenced to the upper term sentence under the pre-Cunningham version of the determinate sentencing law. The defendant in Sandoval claimed the imposition of the upper term sentence was a violation of her Sixth Amendment rights established in Cunningham. (Sandoval, supra,41 Cal.4th at p. 837.) Our Supreme Court agreed because the aggravating circumstances cited by the trial court were based on facts that were not admitted by the defendant and not established by the jury’s verdict. (Sandoval,at pp. 837-838.) The court in Sandoval was unable to find, beyond a reasonable doubt, that the jury, had it been asked to rule on the facts, would have found the facts used to impose the upper term sentence. (Id. at pp. 837-843.) The court concluded that the case should be remanded for resentencing and the remedy would be for the trial court to determine, at its discretion, which sentence in the triad to impose; in other words, the remedy was equivalent to the sentencing scheme detailed in the amended version of the determinate sentencing law. (Id. at pp. 846-848; 853.)
The defendant contended “she wa[s] disadvantaged by the application of the revised scheme, because she [would have lost] the benefit of [Penal Code] section 1170’s requirement that the middle term be imposed in the absence of any aggravating... circumstances...” and therefore, the sentencing scheme violated the ex post facto clause. (Sandoval, supra,41 Cal.4th at p. 854.) The court noted that whether a change in the sentencing process violated the ex post facto clause depended on the significance of the impact on the defendant. (Sandoval,at p. 854.) Because the defendant had already been sentenced to the upper term under the version of the determinate sentencing law in place at the time of the sentencing, the court concluded the application of the revised scheme would not result in a harsher term but in fact would give a court greater discretion to impose the lowest sentence. (Id. at pp. 854-855.) There was not an ex post facto violation and the case was remanded to the trial court “for resentencing in a manner consistent with the Sixth Amendment as interpreted in Cunningham.” (Sandoval,at p. 843.)
Here, defendant asserts he was entitled to be sentenced under the 1996 version of the determinate sentencing law because the statute mandated a presumptive middle term sentence. He further claims, like the defendant in Sandoval, that the application of the amended version of the determinate sentencing law was an ex post facto violation. However, for there to be an ex post facto violation, there must be a significant impact on the defendant. (Sandoval, supra,41 Cal.4th at p. 854.) As in Sandoval, however, the amended version of Penal Code section 1170 gave the sentencing judge greater latitude not just to impose the upper term, but also the lower term sentence. (See Sandoval,at p. 855.) The application of the revised sentencing scheme did not aggravate the crime or make it greater than it was when it was committed. (See Carmell v. Texas (2000) 529 U.S. 513, 522 [146 L.Ed.2d 577, 588] [“[e]very law that aggravates a crime, or makes it greater than it was, when committed” is an ex post facto law].) Thus, there was no significant impact on defendant. Consequently, there was no ex post facto violation.
II
The Imposition Of The Upper Term, Based On The Probation Report And The Victim’s Testimony At The Sentencing Hearing, Was Neither An Abuse Of Discretion Nor Was It A Due Process Violation
Defendant argues that the trial court erred when imposing the upper term sentence because the court relied on disputed facts contained in the probation report to find the crime involved threat of great bodily harm and defendant’s acts disclosed and demonstrated a high degree of cruelty, callousness, and viciousness. He contends this error constituted an abuse of discretion and a due process violation. We disagree.
A
Abuse Of Discretion
Judges have the discretion to rely on probation reports to aid in a sentencing decision. (See Williams v. New York (1949) 337 U.S. 241, 249-250 [93 L.Ed. 1337, 1343].) The court observed in Apprendi v. New Jersey, supra, 530 U.S. at page 481 [147 L.Ed.2d at page 449] that nothing in history “suggests that it is impermissible for judges to exercise discretion--taking into consideration various factors relating both to offense and offender--in imposing a judgment within the range prescribed by statute.” Furthermore, “[t]o deprive sentencing judges of [probation reports] would undermine modern penological procedural policies....” (Williams,at p. 250 [93 L.Ed. at p. 1343].)
Here, defendant acknowledges that the determinate sentencing law gives a trial court broad discretion and rightly notes that such discretion can be subject to review. However, defendant misapplies rule 4.437 of the California Rules of Court to reach his conclusion that the trial court abused its discretion. Defendant argues that rule 4.437 of the California Rules of Court provides that “where there are disputed facts underlying [a] conviction,” the court must conduct a presentencing hearing and make appropriate changes to the probation report. Defendant is correct that the court must review disputed facts; however, those facts must actually be disputed by the parties. (Cal. Rules of Court, rule 4.437(e).)
California Rules of Court, rule 4.437 imparts that parties must provide notice of intention to dispute facts or offer evidence in aggravation or mitigation. The method of notice is through the statement of aggravation or mitigation: “No evidence in aggravation or mitigation may be introduced at the sentencing hearing unless it was described in the statement [of aggravation or mitigation], or unless its admission is permitted by the sentencing judge in the interests of justice.” (Cal. Rules of Court, rule 4.437(c)(2).) Here, defendant’s statement of mitigation did not dispute potential reasons for aggravation found in the probation report; it simply offered possible reasons for mitigation. The statute outlines the method for handling disputed facts: statements of aggravation and mitigation. (Cal. Rules of Court, rule 4.437(c).) California Rules of Court, rule 4.437(e) did not limit the court’s ability to determine a factor of aggravation based on the probation report but rather limited the methods by which defendant could dispute the probation report.
Defendant contends the prosecutor was required to submit a statement in aggravation and request an evidentiary hearing in order to resolve the disputed facts. This is true if the prosecutor intended to proffer evidence in support of claimed factors in aggravation; however, it is not required for the judge to make a determination of disputed facts on his or her own. There is nothing in California law -- including but not limited to California Rules of Court, rule 4.437 -- that prohibits the trial court from determining disputed issues of fact for purposes of exercising its discretion in sentencing. The court did not abuse its discretion when imposing the upper term sentence based on information found in the probation report.
B
Due Process
The imposition of the upper term sentence was within the statutory limits and was based on information within the probation report; it was not a violation of defendant’s due process rights to a fair sentencing hearing. “The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure.” (Williams v. New York, supra, 337 U.S. at p. 251 [93 L.Ed. at p. 1344].) If the court were to rely on facts in a statement of aggravation that extended the sentence beyond the statutory maximum, the facts would have to be determined, beyond a reasonable doubt, by a jury. (See Apprendi v. New Jersey, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455] [holding that due process requires a factual determination be made by a jury on the basis of proof beyond a reasonable doubt if a sentence outside the statutory maximum is to be imposed].) However, here the court did not extend the sentence beyond the statutory maximum, nor did the court rely on statements of aggravation without a jury determination. The court can rely on the information in the probation report to impose a sentence within the statutory maximum; it is not a due process violation. (Williams, at pp. 247-252 [93 L.Ed. at pp. 1342-1345].)
III
Defendant Received Effective Assistance Of Counsel
Defendant contends that the failure of his attorney to object on due process grounds to the court relying on disputed facts as aggravating factors to support imposition of the upper term constituted ineffective assistance of counsel. It is true that defendant’s counsel did not dispute facts contained in the probation report; however, as we have previously concluded, there was no due process violation. Therefore, an objection on that ground would have been futile. (See People v. Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not required to proffer futile objections”].) This did not constitute ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., NICHOLSON, J.