Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA222996 Raul A. Sahagun, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
INTRODUCTION
This is Jose Luis Martinez’s second appeal from his criminal conviction. We previously remanded the case to the trial court for resentencing. (People v. Gonzalez & Martinez (May 15, 2005) nonpub. opn. B171456, at p. 15.) Without the benefit of the recent cases Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct 856] (Cunningham), People v. Black (2007) 41Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the trial court sentenced appellant to the upper term for a gang enhancement pursuant to Penal Code section 186.22 and to the midterm on all other counts and enhancements.
Undesignated statutory citations are to the Penal Code.
The law has changed since the trial court sentenced Martinez. Under the current law, the error in sentencing appellant to the upper term for the gang enhancement was not harmless beyond a reasonable doubt. Therefore, the case must be reversed in part and remanded for resentencing on the section 186.22 enhancement. In all other respects, the judgment is affirmed.
These facts are taken from the court’s prior decision in this case (January 1, 2006, B171456.)
Martinez and his co-defendant, Gonzalez, were convicted based on the testimony of several police officers and a paid informant, Elias Fierro. The evidence shows that Fierro purchased methamphetamine from Martinez, a member of the Maywood Locos gang. The purchase evolved in multiple steps and involved many conversations between Martinez and Fierro. According to Fierro, on September 26, 2001, Martinez called Fierro and said “he had just been jumped into the gang and that now he had a new source for meth.” Martinez reported that his source was named Gama and was also in the Maywood Locos. Fierro negotiated the purchase of one pound of methamphetamine and agreed to pay $13,000 for it. Fierro also agreed to talk to his source, who unbeknownst to Martinez, was an undercover police officer referred to as Thomas, and indicated Thomas would arrange for Martinez to see the money, which would be used to purchase the methamphetamine.
On October 3, 2001, Fierro met with Martinez in a McDonald’s parking lot. Martinez left and returned, approximately 15 minutes later, with Gama. Fierro agreed to meet Gama or Martinez at Sound City Stereo to show the money that would be used to purchase the methamphetamine. Gama showed Fierro a plastic baggie containing approximately one ounce of methamphetamine. Fierro called Thomas who spoke to Gama. Gama said “that if he would see the money, he’d have the drugs right away.” Martinez drove Gama to Sound City Stereo. Two undercover agents showed Gama $26,000. Fierro then returned with Gama to the McDonald’s parking lot, where Martinez was waiting. Later that evening, Gonzalez drove a gold Chevrolet Impala into the McDonald’s parking lot. Marco Lopez was a passenger. Gama and Martinez were also at the McDonald’s.
Gonzalez introduced himself to Fierro as “Kane” and said that “he was a homeboy of Gama and Jose Luis Martinez.” Gonzalez asked Fierro how many pounds of glass (another name for methamphetamine) Fierro wanted. Fierro responded that he was interested in between two and five pounds and Gonzalez responded, “oh really.” Gama interrupted and said that they would just sell one pound that day because they did not know Fierro. Gonzalez acquiesced.
Gonzalez asked Fierro “‘so what do you want to do?’” Fierro responded “‘well if you bring it out to me right here, I’ll go ahead and call in the money.’” Gonzalez agreed. Gonzalez then drove away. Martinez stayed at the McDonald’s with Fierro.
Fierro and Martinez ate while they waited for Gonzalez to return. Gonzalez returned in the Impala with Gama and two others. Fierro asked “are we ready to do this?” Gonzalez responded “yes.” Fierro said he would call for the money. Gonzalez said “okay” and told Gama “‘Here, go get the bag out of the trunk.’” Gama retrieved a bag from the trunk of the Impala and placed it in the trunk of Fierro’s car. Inside the bag was a ziploc bag with white powder.
The Police arrived. Gonzalez, Martinez, Sanchez, and Lopez were detained and searched. Sanchez was carrying a .380 caliber semiautomatic pistol in his front right pocket. In his jacket pocket, Martinez was carrying ammunition for a .380 caliber semiautomatic pistol. Fierro called an undercover agent, who came and arrested, among others, Sanchez, Martinez and Gonzalez. Later tests indicated that the ziploc bag contained 458 grams of methamphetamine.
PROCEDURAL HISTORY
A jury convicted appellant of conspiracy to sell, transport and possess methamphetamine (count 1, § 182, subd. (a)(1)), and transportation/sale of methamphetamine (count 2, Health & Saf. Code § 11379), and possession of methamphetamine for sale (count 3, Health & Saf. Code § 11378.) The jury further found that a principal was armed with a firearm during each offense (§ 12022, subd (d)) and that the offenses were committed for the benefit of a street gang (§ 186.22, subd (b)(1).) The Court of Appeal affirmed appellant’s conviction, but remanded for re-sentencing, holding that the trial court erroneously denied appellant’s request to relieve his private counsel and obtain a public defender for sentencing.
An attorney was appointed pursuant to section 987.2 for resentencing. On July 24, 2006, appellant was sentenced to nine years in state prison: mid term of three years on count 2 (sale/transportation of methamphetamine), plus the high term of four years for the criminal street gang enhancement (§ 186.22, subd. (b)(1)), plus two years for the principal armed enhancement (§ 12022, subd(d)). The court also imposed and stayed the middle term of three years on count 1 and two years on count 3.
On August 8, 2006, appellant filed a timely notice of appeal.
DISCUSSION
On July 24, 2006, the trial court selected the upper term of four years on the criminal street gang enhancement for the following reasons:
“Court selects the high term of four years because the crime showed extensive planning, sophistication and professionalism [¶] Court did hear the case. There was a very delicate dance in the buying of the drugs. It was touch-and-go between the defendant and his co-defendants and the sellers. There were numerous phone calls. There was a short meeting right before the buy. There was [sic] contacts that were very delicate. But indeed they went forward, and it was a very sophisticated operation. In deed, at the very end the buyers demanded to view the drugs. Once they viewed the drugs, they then signaled and went and got the money, came back and the drugs were at a different location. It was very elaborate. It also took place at a McDonald’s in public, and that was done so it would increase their chances of not getting caught. Court also notes that it involved in a [sic] very large amount of contraband. For those reasons, court selection [sic] the high term as to the 186.22(b)(1).”
Martinez was sentenced before the United States Supreme Court decided Cunningham, and before the California Supreme Court decided Black II and Sandoval. In Cunningham, the United States Supreme Court held California’s determinate sentencing law unconstitutional because it violated a defendant’s right to a jury trial by requiring a judge instead of a jury to make factual findings that subject a defendant to an upper term sentence. (Cunningham, supra, __ U.S. ___127 S.Ct. at p. 871.) In Black II, the California Supreme court held that, “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny [including Cunningham], any additional factfinding engaged in by the trial court in selecting the appropriate sentence among three available options does not violate the defendant’s right to a jury trial.” (Black II, supra, 41 Cal.4th at p. 812.)
We allowed the parties to file supplemental briefs on these cases.
In Sandoval, our high court held that where no factor renders a defendant eligible for the upper term, an upper term sentence that is not imposed consistent with Sixth Amendment principles as explained in Cunningham is unconstitutional. (Sandoval, supra, 41 Cal.4th at pp. 837-838.) Sandoval also held that the error in imposing the upper term sentence in violation of a defendant’s Sixth Amendment right to a jury trial should be evaluated to determine if it is harmless under the standard in Chapman v. California (1967) 386 U.S. 18. (Sandoval, at p. 838.) “[W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid.)
In sentencing Martinez to the upper term on the section 186.22 enhancement, the trial court relied on its finding that the crime included planning, sophistication and professionalism. The trial court gave a detailed explanation of what it found to be the factors supporting this determination. However, we cannot say that the error was harmless as a matter of law. A reasonable jury could have reached the same finding as the trial court, but a reasonable jury also could have rejected that finding. “[T]he record does not support the conclusion, beyond a reasonable doubt, that the jury would have found th[is] aggravating circumstance[] to be true had the issues been submitted to that body.” (Sandoval, supra, 41 Cal.4th at p. 842.)
The case must be remanded to the trial court for resentencing on the gang enhancement. (See Sandoval, supra, 41 Cal.4th at p. 843.) Martinez must be resentenced “in a manner consistent with the Sixth Amendment as interpreted in Cunningham.” (Ibid.) In his supplemental brief, Martinez argues that the procedure established in Sandoval for resentencing is unconstitutional. Appellant argues that instead of remanding the case for resentencing, we should instead order the trial court to strike the upper term sentence. We are required to follow our high court. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456) and therefore remand the case to the trial court to sentence Martinez in a manner consistent with our high court’s ruling in Sandoval.
DISPOSITION
The case is reversed in part and remanded to the trial court for resentencing on the section 186.22 enhancement. In all other respects the judgment is affirmed.
We concur: RUBIN, J., FLIER, J.