Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF123332. Leon Emerson, Judge. (Retired judge of the former Mun. Ct. for the Downey Jud. Dist. of L.A. County, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Robert J. Waters for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Jose M. Montalvo, Jr., appeals from a guilty plea and seeks a remand for resentencing, because the trial court did not state reasons for imposing an aggravated term. Citing the Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), he also argues the trial court violated his constitutional right to a jury trial when it imposed the upper term. In addition, defendant contends the amendments to Penal Code section 1170 are unconstitutional despite a contrary determination by our Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825.
FACTUAL AND PROCEDURAL BACKGROUND
On March 27, 2005, while under the influence of alcohol, defendant drove his vehicle in the wrong direction on the freeway and collided with two vehicles. A passenger of one vehicle died as a result of the collision, and the drivers of both vehicles were injured.
Defendant pled guilty to vehicular manslaughter with gross negligence (Pen. Code, § 191.5, subd. (a)); driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)); and driving with a blood-alcohol level greater than 0.08 percent causing injury (Veh. Code, § 23153, subd. (b)). Defendant also admitted four prior convictions from a single incident in 1999. All of these prior convictions were for assault with a deadly weapon by force with gang allegations (Pen. Code, §§ 245, subd. (a)(1), 186.22, subd. (b)), and all qualified as serious felonies within the meaning of Penal Code sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2). Three of these prior convictions were stricken by the court pursuant to Penal Code section 1385.
The trial court imposed the upper term of 10 years for the vehicular manslaughter but doubled it to 20 years because of the prior strike. The court then added a consecutive eight-month term, doubled to one year four months, for driving under the influence causing injury. The court also imposed another eight-month term for driving with a blood-alcohol level greater than 0.08 percent, doubled to one year four months, but stayed it pursuant to Penal Code section 654. Defendant is therefore serving a prison sentence of 21 years four months.
DISCUSSION
Failure to State Reasons for Imposing an Upper Term
The People contend defendant made no specific objection in the trial court, so he is not entitled to a remand for resentencing on the ground that the trial court failed to state its reasons for imposing an upper term on the record. Defendant believes he preserved this issue for appeal because his attorney urged the trial court not to impose the upper term. Defendant contends this was enough to give the trial court “a fair opportunity to rule on the essence of the matter” and to give the People “an adequate chance to present argument against the defense position.”
To encourage the “careful exercise of discretion” and to decrease “the risk of error,” trial courts are required to orally articulate their reasons for discretionary sentencing choices on the record. (People v. Scott (1994) 9 Cal.4th 331, 351.) “In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim.” (Ibid.) This forfeiture rule applies to claims involving the trial court’s failure to state or give sufficient reasons for discretionary sentencing choices. (Id. at p. 353.)
In arguments made before the court pronounced sentence, defendant’s attorney cited mitigating factors and twice asked the court “to consider the full range” and not to “automatically impose the upper term.” After the court pronounced the sentence, it asked, “Is there anything further?” Counsel made no objection and did not ask the court to state its reasons for imposing the upper term. Arguing against an aggravated term before the court pronounces the sentence is simply not enough to put the court on notice of a defendant’s desire to have specific reasons for the selected term placed on the record in order to preserve the issue for appeal. Having raised no specific objection, we conclude defendant forfeited his right to contest any failure by the trial court to state adequate reasons for its selection of the upper term on the record.
Alleged Constitutional Violations
Citing the Cunningham line of cases, defendant contends the trial court imposed an upper term on the vehicular manslaughter offense in violation of his federal constitutional right to a jury trial, because it relied on aggravating factors that were not admitted or found true by a jury. As a result, he contends a remand for resentencing is necessary. We disagree.
Defendant acknowledges he is raising constitutional issues that have been decided against him by the California Supreme Court. However, he raises the issues in order to preserve them for federal court review.
In Cunningham, the Supreme Court concluded California’s determinate sentencing law (DSL) violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. [127 S.Ct. at p. 860], italics added.) In response to Cunningham, our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 815 (Black II), citing People v. Osband (1996) 13 Cal.4th 622, 728, concluded a remand for resentencing is unnecessary where the record shows that in imposing an upper term the trial court relied on a single aggravating factor, which meets constitutional standards, such as the defendant’s criminal history, even if the court also relied on other factors. (Black II, at pp. 815-820 [stating 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”].) As defendant acknowledges, we are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
As defendant acknowledges, the Legislature amended the DSL effective March 30, 2007, in response to Cunningham. (People v. Sandoval, supra, 41 Cal.4th at p. 836, fn. 2.) Because of these amendments, trial courts now have the discretion under Penal Code section 1170, subdivision (b), to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Sandoval, at p. 847, citing Pen. Code, § 1170, subd. (c), as amended.) Rather, “a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.” (Sandoval, at p. 848.) Here, the record shows defendant was sentenced on December 14, 2007. It is therefore apparent defendant was not sentenced under the sentencing scheme found unconstitutional by the Supreme Court in Cunningham, so his reliance on Cunningham is questionable.
Nor would defendant be entitled to a remand for resentencing even if he could convince us Cunningham is relevant under the circumstances of his case. The record shows defendant admitted the existence of four prior convictions for assault with a deadly weapon, all of which were incurred as a result of a single incident in 1999. Although the trial court dismissed three of these prior convictions for purposes of sentencing under the “Three Strikes” law, the court would not be precluded from considering them to impose an upper term. (People v. Garcia (1999) 20 Cal.4th 490, 499 [indicating dismissal of prior convictions for one sentencing purpose under Pen. Code, § 1385 does not wipe out or prevent the consideration of these same prior convictions for another purpose in the same proceeding].) Since an upper term would be “legally justified” based on the existence of these prior convictions, a remand for resentencing would not be necessary.
Defendant argues that the amendments to Penal Code section 1170 are unconstitutional. However, in Sandoval, supra, 41 Cal.4th at pages 845-857, our Supreme Court held it is constitutionally appropriate to apply the amended version of the DSL in all sentencing proceedings conducted after the effective date of the amendments, regardless of whether the offense was committed prior to the effective date of the amendments. As defendant acknowledges, we are bound by the Sandoval decision. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) We therefore conclude defendant is not entitled to a remand for resentencing.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., MILLER, J.