Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD201497, Leo Valentine, Jr., Judge.
IRION, J.
Andre Moore challenges the sentence imposed on him following his convictions for transportation, sale and possession of cocaine base (Health & Saf. Code, §§ 11352, subd. (a), 11351.5) arising out of three separate transactions, his possession of a firearm during one of the transactions (Pen. Code, § 12022, subd. (c)), and his admission of (a) four prior prison terms (§§ 667.5, subd. (b), 668), (b) two prior strikes (§ 667, subds. (b)-(i), 1170.12), and (c) the fact that he was on bail at the time of the offenses (§ 12022.1, subd. (b)). After striking one of Moore's prior strikes, the trial court initially sentenced Moore to prison for 41 years four months, imposing the middle term on all of the counts. Approximately two weeks later, an error in the calculation of the sentence came to the attention of the trial court. The trial court recalled the sentence and resentenced Moore to prison for 30 years four months. Upon resentencing, the trial court imposed an upper term sentence with respect to the principal term (i.e., count 2, for violation of Health & Saf. Code, § 11352, subd. (a)) and the accompanying firearm enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
Moore argues that the trial court abused its discretion by sentencing him to the upper term on the principal term and the accompanying firearm enhancement upon resentencing. Moore also argues: (1) because he committed the offenses before the amendments to California's Determinate Sentencing Law (DSL) (§ 1170, as amended by Stats. 2007, ch. 3, § 2), the application of the amended DSL violates the prohibition against ex post facto laws; (2) in the event we conclude that the prior version of the DSL should apply here, his Sixth Amendment right to a jury trial was violated when the trial court imposed the upper term by relying on facts not found by a jury beyond a reasonable doubt; and (3) the imposition of the upper term for the firearm allegation violated Moore's Sixth Amendment right to a jury trial because section 1170, subdivision (b), pursuant to which he was sentenced for the firearm enhancement, was not amended by the Legislature to cure the constitutional infirmity in the DSL identified in Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
As we will explain, we conclude that Moore's final point has merit. Moore's Sixth Amendment right to a jury trial was violated when the trial court sentenced him to the upper term on the firearm enhancement based on facts not found by a jury beyond a reasonable doubt. Accordingly, we vacate Moore's sentence and remand for resentencing.
I
FACTUAL AND PROCEDURAL BACKGROUND
After drug enforcement officers conducted a narcotics investigation using an informant, Moore was arrested and charged in an information with seven counts arising out of his participation in the sale of cocaine base on three different dates — August 24, 2006; September 5, 2006; and September 11, 2006. A jury convicted Moore of one count of transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a)); three counts of selling cocaine base (ibid.); and three counts of possession of cocaine base for sale (id., § 11351.5). With respect to the transaction occurring on September 11, 2006, the jury found that the cocaine base exceeded one kilogram (id., § 11370.4, subd. (a)(1)); and that Moore was personally armed with a handgun (§ 12022, subd. (c)). Moore admitted that he was on bail at the time of the offenses (id., § 12022.1, subd. (b)); that he had two prior strike convictions (id., §§ 667, subds. (b)-(i), 1170.12); and that he had served four prior prison terms (id., §§ 667.5, subd. (b), 668).
On June 15, 2007, the trial court sentenced Moore to prison for 41 years four months, after striking one of Moore's prior strikes. As relevant to the issues presented in this appeal, the trial court selected count 2 for the principal term (i.e., the conviction for selling cocaine base on Sept. 11, 2006) and imposed the middle term for that count and all of the other counts, and for the firearm enhancement arising from the jury's finding that Moore was personally armed with a handgun while perpetrating the September 11, 2006 offenses.
Approximately two weeks later, the trial court became aware of an error in the way that it had applied Moore's prison priors in calculating the sentence. Accordingly, pursuant to section 1170, subdivision (d), the trial court recalled the original sentence and resentenced Moore at a hearing held on July 16, 2007. Upon resentencing, the trial court sentenced Moore to prison for 30 years four months. In calculating the new sentence, the trial court again struck one of the prior strikes but decided to impose the upper term on count 2 (i.e., the principal term) and on the firearm enhancement for count 2. The trial court identified the fact that Moore was a "major player" in the narcotics transactions as the basis for imposing the upper term.
Section 1170, subdivision (d) provides in relevant part: "When a defendant . . . has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary [of the Department of Corrections and Rehabilitation], the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence."
Moore appeals from the judgment.
II
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Resentencing Moore
Moore's first contention is that the trial court "abused its discretion by imposing the upper terms at [Moore's] re-sentencing, when there had been no change in the relevant factors between the original sentencing, at which the middle terms were imposed, and the re-sentencing a month later."
At the time that Moore was sentenced in July 2007, the sentencing scheme in effect was the version of the DSL that the Legislature amended effective March 30, 2007 (§ 1170, as amended by Stats. 2007, ch. 3, §§ 2, 7) (the amended DSL) in response to the decision in Cunningham, supra,549 U.S. 270.
The issue before us is whether the trial court abused its discretion by the manner in which it sentenced Moore under the amended DSL. "[A] trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) Moore contends that because the facts had not changed between the original sentencing and the resentencing, the trial court must have based its sentencing decision on a desire to impose a sentence of a specific length rather than on applicable sentencing criteria. He argues that "the trial court's decision to impose the upper terms at [Moore's] re-sentencing, based on a factor which existed at the time of the original sentencing, was not the result of the careful weighing and evaluation of sentencing factors required by the applicable statutes and rules" but was instead "merely the means of carrying out a predetermined decision to impose the maximum sentence allowable after correction of the sentencing error."
At the outset of our analysis, we note that the law is clear that upon resentencing the trial court is entitled to reconsider the entire sentence, not just the component that was erroneously imposed, and the trial court has discretion to consider anew all of its sentencing choices, with the limitation that the new sentence may not exceed the length of the original sentence. (People v. Savala (1983) 147 Cal.App.3d 63, 69 [upon resentencing "the court was entitled to reconsider all of its sentencing choices, subject only to the limitation that defendant not be sentenced to a greater aggregate term than the first sentence"].) "This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." (People v. Hill (1986) 185 Cal.App.3d 831, 834; see also People v. Burbine (2003) 106 Cal.App.4th 1250, 1258-1259.) Acknowledging this principle, Moore stresses he is not arguing that the trial court lacked the discretion to "re-fashion the sentence." He clarifies that he is arguing the trial court abused its discretion because it arrived at the new sentence in an arbitrary manner. As we will explain, we disagree.
Under the amended DSL, the trial court is required to exercise its discretion by "set[ting] forth on the record the reasons for imposing the term selected." (§ 1170, subd. (b), as amended by Stats. 2007, ch. 3, § 2.) California Rules of Court, rule 4.420(b) states that "[i]n exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170[, subdivision ](b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." Further, "[t]he trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Sandoval, supra, 41 Cal.4th at p. 847.)
Here the record shows that the trial court fulfilled these requirements and thus properly exercised its discretion. As required, the trial court set forth on the record the reason that it was imposing the upper term. The trial court's reason — that Moore was a "major player" in the transactions — was a factor reasonably related to the sentencing decision and was based on the trial court's close attention to the facts of the case before it. The record thus does not support Moore's assertion that the trial court sentenced him based solely on the goal of imposing the longest term possible without consideration of appropriate factors. Accordingly, we conclude that the trial court did not abuse its discretion.
B. There Is No Merit to Moore's Argument that the Imposition of Sentence Under the Amended DSL Violates the Prohibition Against Ex Post Facto Laws
Moore's next argument is that because he committed the offenses before the Legislature amended the DSL, the ex post facto clause of the United States Constitution (U.S. Const., art. I, § 10, cl. 1) and the prohibition against ex post facto laws in the California Constitution (Cal. Const., art. I, § 9) prohibit the application of the amended DSL to his case.
However, as Moore recognizes, our Supreme Court in Sandoval, supra, 41 Cal.4th at pages 853-858, concluded that the application of the amended DSL to crimes committed before its enactment does not violate the prohibition against ex post facto laws. We are bound to follow the decision of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we follow Sandoval and reject Moore's argument that the trial court violated the prohibition against ex post facto laws.
C. The Upper Term Sentence for the Firearm Allegation Was Imposed on Moore in Violation of His Right to a Jury Trial
Moore's next contention is that he was sentenced to the upper term in violation of his Sixth Amendment right to a jury trial. Moore makes two separate arguments relating to this issue. As we will explain, we conclude that only one of the arguments has merit.
1. The Prior Version of the DSL Does Not Apply
Moore's first argument is dependent on the ex post facto clause argument that we have rejected above. Moore argues that if the application of the amended DSL to his case violates the prohibition against ex post facto laws, we should apply the version of the DSL in effect before the DSL amendments. Citing Cunningham, supra, 549 U.S. 270, Moore points out that under the prior version of the DSL, a defendant's constitutional right to a jury trial is violated if a court imposes an upper term sentence based on facts not found by a jury beyond a reasonable doubt. Again relying on Cunningham, Moore contends that by imposing upper terms in this case based on the finding that Moore was a " 'major player' " in the transactions, the trial court relied on facts not found by a jury beyond a reasonable doubt and therefore violated Moore's Sixth Amendment right to a jury trial.
This argument fails because we have rejected Moore's ex post facto clause argument. Thus, the proper sentencing scheme to apply in this case is the amended DSL which, as Moore recognizes, took effect on March 30, 2007, several months before Moore's July 16, 2007, sentencing. (Stats. 2007, ch. 3, § 7, No. 2 West's Cal. Legis. Service, p. 9 ["This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect"].) Our Supreme Court has ruled that the amendments to the DSL address the constitutional problems identified in Cunningham. (Sandoval, supra, 41 Cal.4th at p. 844.)
2. The Portion of the DSL Applicable to Sentencing Enhancements Was Not Amended to Cure the Constitutional Infirmity Identified in Cunningham
Moore's second argument focuses only on the upper term sentence for the firearm enhancement imposed under section 12022, subdivision (c). Relying on People v. Lincoln (2007) 157 Cal.App.4th 196, 205-206 (Lincoln), Moore argues that the trial court imposed the upper term for the firearm enhancement in violation of his Sixth Amendment right to a jury trial.
As Lincoln explained, in response to Cunningham, supra, 549 U.S. 270, the Legislature amended the DSL by amending the provision stating that the court "shall" order the imposition of the middle term when sentencing on a substantive offense, unless there are circumstances in aggravation or mitigation of the crime (former § 1170, subd. (b)). However, as Lincoln went on to explain, the Legislature did not similarly amend the provision relating to sentencing for enhancements under section 1170.1, subdivision (d). The provision in the amended DSL relating to enhancements continues to provide that "[i]f an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation." (§ 1170.1, subd. (d), italics added.) As Lincoln pointed out, "[t]his provision suffers from the identical constitutional infirmities identified by the United States Supreme Court in Cunningham, supra, 549 U.S. [270], and is similarly unconstitutional." (Lincoln, supra, 157 Cal.App.4th at p. 205.) Lincoln also noted that "[t]he Legislature has taken no step to amend this provision to render it compliant with the Sixth Amendment, and the California Supreme Court did not reform it in Sandoval, supra, 41 Cal.4th at pages 843 through 852." (Lincoln, at p. 205.) Accordingly, Lincoln remanded for resentencing, specifying that the trial court would be constitutionally permitted to impose the upper term for a firearm enhancement only if the upper term was imposed based on facts found by a jury beyond a reasonable doubt or the defendant's recidivism. (Id. at p. 206.)
The provision now reads in part: "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." (§ 1170, subd. (b).)
Lincoln's reasoning is sound, and we adopt it here. In a supplemental letter brief addressing the issue, the Attorney General indicates that he accepts Lincoln's holding. The Attorney General concedes that "Lincoln correctly identified the constitutional defect in section 1170.1, subdivision (d)."
Applying Lincoln to this case, we conclude that the trial court imposed the upper term sentence for the firearm enhancement in violation of Moore's Sixth Amendment right to a jury trial. The trial court imposed the upper term based on its finding that Moore was a "major player" in the transactions — a fact not found by the jury beyond a reasonable doubt. Accordingly, we vacate Moore's sentence.
The Attorney General argues here, as it did in Lincoln, that we should undertake a judicial reformation of section 1170.1, subdivision (d) to remove its constitutional infirmity, just as the Supreme Court undertook a judicial reformation of other portions of the DSL in Sandoval, supra, 41 Cal.4th at pages 843-852. Following the reasoning expressed in Lincoln, we decline to engage in judicial reformation of section 1170.1, subdivision (d). (Lincoln, supra, 157 Cal.App.4th at pp. 205-206.) As Lincoln explained,
"We cannot profess to know whether the Legislature failed to remove the presumption of the middle term with respect to enhancements deliberately or inadvertently. While it may be that the omission was inadvertent in the rush to respond to the Supreme Court's decision in Cunningham, supra, [549 U.S. 270], we cannot presume that to be the case in view of the fact that the Legislature has taken no action to remedy any oversight in the intervening months since the urgency legislation was enacted. When the Legislature's intent is not clear, judicial reformation of a statute is not an option. (Sandoval, supra, 41 Cal.4th at p. 844 ['we have the authority to revise the DSL in a manner that avoids constitutional problems, if we conclude that the Legislature's intent clearly would be furthered by application of the revised version rather than by the alternative of invalidation'].) The Sandoval reformation does not address sentencing on sentence enhancements punishable by three terms and in the absence of legislative action, we cannot extend the reformation to this case." (Lincoln, supra, 157 Cal.App.4th at pp. 205-206.)
Accordingly, we remand for the trial court to resentence Moore and to apply the version of section 1170.1, subdivision (d) then in effect. The parties point out that the record contains certain evidence of Moore's recidivism. Upon resentencing the trial court may, at its discretion, consider whether the evidence of Moore's recidivism is sufficient to permit it to impose an upper term on the firearm enhancement.
As the parties point out, it is possible that the Legislature will, in the future, amend section 1170.1, subdivision (d) to remove the constitutional infirmity. Senate Bill No. 1342 of the current legislative term addresses the issue. (Sen. Bill No. 1342 (2007-2008 Reg. Sess.) as introduced Feb. 20, 2008 [as of Oct. 9, 2008].)
DISPOSITION
We vacate the sentence and remand for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.