Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD181922, Robert F. O'Neill, Judge.
BENKE, J.
A jury convicted Felipe Sanchez, also known as Luis Mendoza, of two counts of committing lewd acts on a child. (Pen. Code, § 288, subd. (a).) The court sentenced Sanchez to prison for the upper term of eight years for count 1 and a consecutive term of one-third the middle term of six years for count 2, totaling 10 years. The court also imposed a one-year sentence for a prior drug conviction for which Sanchez was on probation at the time he was arrested for the instant offenses.
Luis Mendoza's proper name is Felipe Sanchez. Although he was charged in this case under the name Luis Mendoza, we will refer to him as Sanchez.
All further statutory references are to the Penal Code unless otherwise specified.
In a prior appeal, Sanchez argued the court erred by instructing the jury during his testimony that it had already ruled Sanchez's admissions to police were admissible and that police had not violated Sanchez's Miranda rights. Sanchez also argued the court's imposition of an upper term violated his right to a jury trial. We held the court did not err in instructing the jury, but the court's imposition of an upper term violated Sanchez's constitutional right to a jury trial. Citing Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), we concluded California's determinate sentencing law (DSL) violated Sanchez's right to a jury trial because it allowed the court to find facts that elevated the sentence beyond the statutory maximum term, which it determined was the middle term. Thus, we affirmed in part, reversed in part and remanded the case for further sentencing proceedings.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
At the re-sentencing hearing, the court again sentenced Sanchez to the upper term of eight years for count 1 and a consecutive two-year term for count 2. In this appeal, Sanchez contends the imposition of the upper term violated his constitutional right to a jury trial. We conclude the court's imposition of the upper term did not violate Sanchez's constitutional right to a jury trial, and accordingly we affirm the judgment.
This court has granted a motion for judicial notice of its opinion in the first appeal in this case (DO47643), which contains details of the trial proceedings. Thus, we need not repeat the facts here.
DISCUSSION
A. Application of Section 1170, subdivision (b), and Ex Post Facto Clause Violation
Appellant acknowledges we are bound by California Supreme Court decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) but raises the application of Black II and Sandoval to his case to preserve his right to challenge his sentence in a federal habeas corpus proceeding.
Appellant contends application of section 1170 as amended violates the ex post facto clause of the federal Constitution because it increases the punishment for his crime. In Sandoval the California Supreme Court applied Senate Bill 40 (Stats. 2007, ch. 3, enacting Sen. Bill No. 40 (2007-2008 Reg. Sess.) (SB40), which amended the DSL, even though the crime had occurred before the passage of the amendment. (People v. Sandoval, supra, 41 Cal.4th at p. 845.) The court held the amendments to the DSL are applicable to any sentencing proceedings that occur after the amendments' adoption. The amendments are applicable because they are procedural in nature and therefore are not considered retroactive when applied to proceedings that occur after the amendments' enactment. Substantive criminal law is considered retroactive if applied to cases where the crime occurred before the amendments' enactment. (Ibid.)
Here, the amendments were enacted after the crime's occurrence and before the resentencing hearing. The amendments modified the DSL to eliminate the presumption the middle of the three sentence terms was the statutory maximum and placed the decision of which term should be imposed within the discretion of the sentencing court. (§ 1170, subd. (b).) Although the court in Sandoval declined to unequivocally establish a rule that the changes to the DSL are changes in procedural law, the amendments are arguably procedural changes whose application is not retroactive in the case of proceedings conducted after the effective date of the amendments. (People v. Sandoval, supra, 41 Cal.4th at p. 845.) The court reasoned: "[E]ven if we assume that the recently enacted legislation does not, by its own terms, apply to cases that are remanded for resentencing [under Cunningham], this court would have the responsibility and authority to fashion a constitutional procedure for resentencing in cases in which Cunningham requires a reversal of an upper term sentence. . . . [W]e conclude that it is appropriate for resentencing in such cases to proceed under the procedure . . . adopted . . . by the Legislature. [Citations.]" (Id. at pp. 845-846.)
This court and the trial court are bound by the California Supreme Court's holding and rationale in Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because the amendments to the DSL are changes in procedural law, their application to appellant's case at the resentencing hearing was not retroactive and did not constitute a violation of the ex post facto clause. Further, application of the amended DSL to resentencing proceedings is a judicial procedure necessary in order for those proceedings to be consistent with the constitutional principle of the right to a jury trial. (People v. Sandoval, supra, 41 Cal.4th at pp. 845-846.)
Under Sandoval, the sentencing court appropriately applied amended section 1170, subdivision (b), and did not abuse its discretion in imposing the upper term. We also reject appellant's contention the decision in Sandoval violated the separation of powers doctrine. The court did not encroach on the Legislature by applying SB40 to that case because it merely applied the procedure found in the amendments to the DSL adopted by the Legislature. (People v. Sandoval, supra, 41 Cal.4th at p. 846.)
Appellant asserts even if the application of the amended statute does not violate the ex post facto clause, the judicial decision to apply amended section 1170 is not consistent with "core due process concepts of notice, foreseeability, and, in particular, the right to fair warning." (Rogers v. Tennessee (2001) 532 U.S. 451, 459 [121 S.Ct. 1693] (Rogers).) In Rogers, the Court held strict application of the ex post facto clause "does not apply to courts." (Id. at p. 460.) The court further held judicial acts "making" or "finding" the law are necessary to clarify and reevaluate prior opinions as new circumstances and fact patterns arise, and "[t]he common law, in short, presupposes a measure of evolution that is incompatible with stringent application of ex post facto principles." (Id. at p. 461.)
Every federal court that has considered the issue of the court's "remedial interpretation" of federal sentencing statutes in U.S. v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738] as applied to cases pending on appeal has rejected the argument it denies due process of the law, relying on the principles established in Rogers. (People v. Sandoval, supra, 41 Cal.4th at pp. 856-857.) An enlargement of the contours of a crime or the maximum sentence for a crime by judicial decision raises due process objections based on lack of fair warning only when the change is unexpected or indefensible by prior case law. (People v. Sandoval, supra, 41 Cal.4th at p. 857.) In order to raise due process concerns, the sentence imposed on the defendant must be well outside of his reasonable expectations. (Ibid.) In concluding the federal Constitution does not prohibit the application of amended section 1170 to defendants whose crimes were committed before its amendment, the California Supreme Court held in Sandoval the "[d]efendant was put on notice by section 193 that she could receive the upper term for her offense" and that notice satisfies the requirements of due process. (Ibid.)
Here, appellant was put on notice by section 288, subdivision (a), he could receive the upper term of eight years for his crime, even before the amendment of section 1170. Because appellant had notice the fact of a prior conviction or a finding of aggravating circumstances could have resulted in the imposition of the upper term, he has not been denied due process.
B. Equal Protection
Appellant contends application of section 1170 as amended violates equal protection "because a defendant sentenced under it would not have the benefit of the same presumption in favor of the middle term as an identically situated individual tried and sentenced before the amendment." Under the DSL at the time the offense was committed, the sentencing court had discretion to select one of three terms, but to impose the upper term of eight years, the court had to comply with the California Rules of Court and also find certain aggravating facts. Because the aggravating facts were found by the court rather than the jury, appellant's sentence violated Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely) and Cunningham. Appellant argues if the court could not impose the upper term because of the constitutional requirements of these three cases, then it could only have imposed the middle or lower term. Appellant claims he was not afforded protection from increased punishment because a similarly situated defendant sentenced before the amendment of section 1170 would only be subject to the middle term.
Appellant's equal protection claim fails because the facts cited by the court to justify imposition of the upper term at the original sentencing and the reasons it cited at resentencing included the fact of appellant's felony probation status at the time of the offense. A similarly situated defendant who was on felony probation and sentenced before the amendment of section 1170 would also have faced the upper term. Moreover, amended section 1170 does not treat defendants sentenced after the amendment in a disparate manner because amended section 1170 only serves to eliminate the presumption previously found in the DSL that the middle term should be applied. The amended DSL places the discretion of which term should be imposed with the sentencing court and requires a statement of reasons for the imposition of the chosen term. The range of three terms applies to all defendants similarly situated, regardless of whether their crimes occurred before the amendment of the DSL. Therefore, appellant's equal protection rights were not violated.
C. The Resentencing
Appellant claims Black II was wrongly decided because it fails to comport with the Sixth Amendment requirements of Cunningham. Appellant cites section 1170 as it read before the recent amendments to support his contention the Legislature did not intend the imposition of the upper term based on the finding of a single aggravating factor. He also challenges the validity of the exception for prior convictions, where the fact of a prior conviction is a sufficient justification for imposing the upper term. He argues the prior conviction exception is no longer viable and therefore the court abused its discretion in failing to submit the existence of other aggravating and mitigating circumstances to the jury. Appellant contends the court is required to balance those circumstances to determine the appropriate term.
The United States Supreme Court established a bright-line rule in Apprendi that 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.' " (Cunningham v. California, supra, 549 U.S. 270 [127 S.Ct. at p. 868].) In Black II the California Supreme Court refined the rule as it applies to the selection of a particular sentence within a range of three sentences, holding "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 on the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816). In Almendarez-Torres v. U.S. (1998) 523 U.S. 224, 243 [118 S.Ct. 1219] (Almendarez-Torres), the court held "recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence," reinforcing the fact of a prior conviction is an exception to the right to a jury trial.
The Legislature's intent is evident in the amended statute, which places the choice of the appropriate term within the trial court's discretion. The amendment made the statutory maximum in appellant's case the upper term of eight years, not the midterm as appellant argues. The sentencing court must only state its reasons for imposing the upper term and is not required to include factual findings. (People v. Sandoval, supra, 41 Cal.4th at pp. 846-847.) Here, the court's primary reason for imposing the upper term was appellant was on felony probation at the time of the crime. The court went on to indicate other reasons to support its imposition of the upper term, but imposition of the upper term was justified by appellant's prior conviction alone.
This result is consistent with the decisions in Apprendi, Blakely and Cunningham, where the court continued to exempt explicitly the fact of a prior conviction. Appellant points to footnote 8 in Black II (Black II, supra, 41 Cal.4th at p. 819) to suggest the validity of the prior conviction exception is tenuous. As the court noted in that opinion, "Although some of the reasoning in Almendarez-Torres v. United States, supra, 523 U.S. at pp. 230-235,which focused upon whether Congress in its reference to recidivism intended to create an element of a crime or a sentencing factor, is inconsistent with the court's later reasoning in Apprendi and Blakely, which focuses upon the practical effect of the factual finding required, the court in both Blakely and Cunningham continued to exempt explicitly ' "the fact of a prior conviction." ' " (Black II, supra, 41 Cal.4th at p. 819, fn. 8, quoting Blakely v. Washington, supra, 542 U.S. at p. 301, quoting Apprendi v. New Jersey, supra, 530 U.S. at p.490; Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860]; see also U.S. v. Booker, supra, 543 U.S. at p. 245.) As the California Supreme Court acknowledged, because Apprendi, Blakely and Cunningham explicitly recognize the fact of a prior conviction is an exception to the federal right to a jury trial, it would not speculate the United States Supreme Court would change its position on that issue, and neither will this court.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.