Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco City and County Super. Ct. No. 195982
NEEDHAM, J.
Frank Mejia appeals from a judgment following a resentencing hearing ordered under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). We reject his claim that the trial court erred when it again imposed the upper term on the principal count and consecutive sentences on two of the subordinate counts.
I. BACKGROUND
Appellant was tried before a jury and convicted of several acts of domestic violence against the woman who was both his niece and the mother of one of his children: inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), simple assault (§ 240), false imprisonment (§ 236), criminal threats (§ 422) and battery (§ 243, subd. (e)(1)). The charges arose from a March 2005 incident in which appellant hit and choked the victim and an April 2005 incident in which appellant locked her in the apartment, threatened her, sat on top of her and tried to smother her. These acts were the culmination of an abusive 30-year relationship which began when the victim came to live with appellant and his wife when she was 12 years old. The evidence at trial showed that appellant had isolated the victim, prevented her from attending school, forced her to have sex and impregnated her when she was 16. Despite this, the victim lived with appellant until the commission of the crimes in this case.
Further statutory references are to the Penal Code
The court originally sentenced appellant to the four-year upper term for the crime of corporal injury on a cohabitant, two eight-month consecutive terms for the criminal threats and false imprisonment counts, and a consecutive one-year jail term for the misdemeanor assault count. In selecting the upper term on the corporal injury count, the court relied on three factors: (1) the crime involved the threat of great bodily harm; (2) the manner in which the crime was carried out indicated planning and sophistication; and (3) appellant was convicted of crimes involving violent conduct, indicating he is a serious danger to society. Appellant appealed his judgment and sentence.
While appellant’s first appeal was pending, the United States Supreme Court issued its decision in Cunningham, which held that California’s determinate sentencing law (DSL) violated a defendant’s constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make the factual findings authorizing an upper term sentence. (Cunningham, supra, 549 U.S. at pp. ___ [127 S.Ct. at pp. 858-859].) This conclusion rested on the statutory presumption under former section 1170, subdivision (a) that the middle term was the appropriate sentence unless the court found facts in aggravation justifying the imposition of the upper term. (Cunningham at pp. 858-859.) Under that scheme, the middle term was the statutory maximum, and aggravating factors raising the sentence beyond the statutory maximum were subject to the defendant’s right to a jury trial and proof beyond a reasonable doubt. (Ibid.)
Cunningham was the culmination of a line of Supreme Court cases recognizing that “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.” (Cunningham, supra, 127 S.Ct at p. 860, citing Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; and United States v. Booker (2005) 543 U.S. 220.) These authorities recognize that the requirement of a jury trial (and proof beyond a reasonable doubt) do not extend to the fact of a prior conviction. Thus, a court may rely on a defendant’s criminal history to increase the sentence without the necessity of a jury finding or an admission by the defendant. (Cunningham at p. 868; Blakely at p. 301; Apprendi at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243.)
In an unpublished opinion filed July 13, 2007, we affirmed appellant’s convictions but remanded the case for resentencing under Cunningham. (People v. Frank Mejia (July 13, 2007, A113308, as modified August 10, 2007 [nonpub. opn.].) We concluded that a new sentencing hearing was required because the three factors relied upon by the trial court to impose the upper term had not been submitted to the jury. A few days later, our Supreme Court issued two decisions construing Cunningham: People v. Black (2007) 41 Cal.4th 799, 805 (Black) and People v. Sandoval (2007) 41 Cal.4th 825, 831 (Sandoval).
In Black, the court clarified that even under Cunningham, a trial judge has the power to engage in judicial factfinding to determine the appropriate sentence within the range of punishment prescribed by statute. (Black, supra, 41 Cal.4th at pp. 812-813.) Because the presence of a single aggravating factor is enough to support the upper term under California law, the presence of one such factor that has been lawfully determined under Cunningham will render the defendant eligible for the higher sentence. (Black, at pp. 812-813.) In other words, so long as the court cites one legally sufficient aggravating factor—a circumstance that had been found true by the jury, admitted by the defendant, or was exempt from the jury trial requirement because it pertained to the defendant’s prior criminal history—it is free to consider other factors to determine the sentence within the statutory range. (Id. at pp. 813-816.)
In Sandoval, the court concluded that Cunningham error was subject to harmless error analysis under the standard set forth in Chapman v. California (1967) 386 U.S. 18. (Sandoval, supra, 41 Cal.4th at p. 839.) It then discussed how the resentencing of the defendant should proceed when Cunningham error is found to be prejudicial and a case is remanded for resentencing. Rejecting the defendant’s argument that only the middle or lower term may be imposed on remand, the court instead adopted the Attorney General’s proposal that section 1170 be reformed to “afford the trial court ‘broad discretion’ in selecting among the three terms specified by statute for the offense, subject to the requirements that the court consider the aggravating and mitigating circumstances as set out in statutes and rules and that reasons be stated for the choice of sentence.” (Sandoval at p. 843; see also pp. 845-846, 852.) This procedure tracked recent Legislative amendments made to section 1170 and the California Rules of Court, which remedied the constitutional defect identified by Cunningham by eliminating the presumption that the middle term was appropriate. (Sandoval at pp. 846-847.)
A reviewing court considering the effect of Cunningham error must ask whether, “beyond a reasonable doubt, the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance. . . .” (Sandoval, supra, 41 Cal.4th at p. 839.)
At the resentencing hearing in appellant’s case, the trial court explained that it was proceeding according to Sandoval: “The court is aware of and is fashioning its sentencing scheme based upon People v. Sandoval, 41 Cal.4th 825, all right, and the sentencing scheme as laid out by our Supreme Court is as follows: The court first determines whether or not there are any findings the court can make which would justify imposition of the entire triad of possible punishments. [¶] The Court finds that [appellant] has a prior significant felony conviction for statutory rape. And as I said, he may have two of them. And according to People v. Sandoval that standing alone, the court finds is sufficient—and the court does find—that it is a finding which permits the Court to have the full range of all three sentencing choices. So the Court finds that the uppermost term that is legally permissible under these circumstances is the aggravated term.” The court then imposed the same sentence as it had during the original sentencing—including the selection of the upper term on the corporal injury count—citing again the threat of great bodily harm, the planning and sophistication of the offense, and appellant’s conviction of violent offenses indicating that he presented a danger to society. This appeal follows.
II. DISCUSSION
Appellant argues that trial court erred when it imposed the upper term for corporal injury of a cohabitant based in part on a 1963 conviction for statutory rape that was identified in the probation report. He contends the court mistakenly assumed that conviction was a felony, even though the rap sheet and probation report did not specify the nature of the offense and statutory rape was at that time a “wobbler” alternatively punishable as a misdemeanor or a felony. (People v. Hernandez (1964) 61 Cal.2d 529, 530 [statutory rape violation under former § 261, subd. (1) punished as misdemeanor].) Although we agree that the record is insufficient to establish whether appellant’s statutory rape conviction was a felony or a misdemeanor, remand is not required.
We begin by noting that while the trial court cited Sandoval and purported to follow the resentencing procedures outlined therein, its approach was more consistent with the discussion in Black, which concluded that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black, supra, 41 Cal.4th at p. 816.) Thus, the trial court assumed (correctly) that if appellant were found to have a prior conviction that could support the upper term, it would be free to consider all the relevant circumstances—including those not admitted by defendant or found true by the jury—when determining the appropriate sentence from the entire three-tiered range.
A potential problem arises in this case because the court may have been mistaken about the nature of the prior statutory rape conviction on which it relied in order to find appellant eligible for an upper term sentence. But even if the prior conviction did not render appellant eligible for the upper term under the rationale of Black, the court’s reliance upon other factors to impose an aggravated sentence on remand was valid under Sandoval.
While the focus in Black was upon whether Cunningham error had been committed in the first instance, Sandoval deals with the procedure that must be followed once Cunningham error has been found and the case has been remanded. Tracking Legislative amendments to section 1170 and the Rules of Court that did away with the presumptive middle term, the court in Sandoval concluded that the entire range of punishment may be considered during resentencing. (Sandoval, supra, 41 Cal.4th at p. 850.) “The trial court will be required to specify reasons for its sentencing decision, but it will not be required to cite ‘facts’ that support its decision or to weigh aggravating and mitigating circumstances. (See § 1170, subd. (c), as amended by Stats. 2007, ch. 3, § 2; § 1170.3 as amended by Stats. 2007, ch. 3, § 4; compare former Cal. Rules of Court, rule 4.420 with rule 4.420 as amended May 23, 2007.)” (Sandoval at pp. 846-847.) This was consistent with the line of cases culminating in Cunningham, under which a sentencing court retains “‘broad discretion in imposing a sentence within a statutory range. [Citations.] . . . For when a trial judge exercises his [or her] discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.’” (Sandoval, supra, 41 Cal.4th at p. 844.)
Although the trial court in appellant’s case appeared to believe that the full range of terms was available only if it could point to a prior conviction or to a fact admitted by the defendant or found true by the jury, the Sandoval procedure is not so limited. Subject to our review for abuse of discretion (Sandoval, supra, 41 Cal.4th at p. 847), the court is entitled to impose any of the three terms on remand—including the upper term—so long as it specifies its reasons for doing so. This discretion is not contingent on the presence of some factor admitted by the defendant, found true by the jury, or based on a prior conviction. (Id. at pp. 843-852.)
Having cited appellant’s prior conviction for statutory rape as a circumstance authorizing an upper term sentence, the trial court relied on three factors concerning the commission of the offense itself when it selected the upper term on the corporal injury count: (1) the offense involved a threat of great bodily harm (attempted suffocation of the victim) and a high degree of cruelty, viciousness and callousness; (2) the circumstances indicated planning because appellant used gloves and blocked the victim’s escape path; and (3) the crime involved violent conduct indicating a serious danger to society. Under Sandoval, this sufficed as a statement of reasons. (See Sandoval, supra, 41 Cal.4th at p. 847.) The court’s finding that appellant had a prior felony conviction for statutory rape was extraneous, because it was not cited as a reason for imposing the upper term.
Under these circumstances, if the court had simply exercised its discretion in the permissible manner described by Sandoval, without considering the effect of the prior conviction, it would have concluded that the upper term was appropriate. Any error in considering the prior statutory rape conviction, or in treating that conviction as a felony rather than a misdemeanor, was harmless beyond a reasonable doubt. (See Sandoval, supra, 41 Cal.4th at p. 838-839.)
Appellant suggests that even if the trial court’s ruling conformed with Black and/or Sandoval, those cases were erroneously decided. We are bound by those decisions and are not at liberty to reconsider their holdings. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) For the same reason, we reject appellant’s claim that the trial court violated his right to a jury trial when it imposed consecutive sentences on two subordinate counts based on facts that were not found true by the jury. Our Supreme Court has held that the principles of Cunningham do not apply to consecutive sentences imposed pursuant to section 669. (Black, supra, 41 Cal.4th at p. 823.)
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., DONDERO, J.
Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.