Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUKCRCR0884115
Reardon, Acting P.J.
I. INTRODUCTION
Defendant Luis Sandoval Navarro pleaded guilty to possession for sale of methamphetamine (Health & Saf. Code, § 11378) and admitted an enhancement for possession of drugs within 1,000 feet of a school (Health & Saf. Code, § 11353.6, subd. (b)). The trial court determined defendant was ineligible for probation and imposed the middle term of two years for the possession for sale of methamphetamine, together with an additional three years for the enhancement for an aggregate term of five years in state prison.
The trial court subsequently recalled the sentence pursuant to Penal Code section 1170, subdivision (d). In resentencing defendant, the trial court struck the enhancement and imposed the aggravated term of three years for the underlying offense. On appeal, defendant complains that the trial court acted in excess of its jurisdiction in imposing the upper term and that this sentence runs afoul of Cunningham v. California (2007) 549 U.S. 270 (Cunningham). Finding no prejudicial error, we affirm.
All further undesignated statutory references are to the Penal Code.
II. FACTS AND PROCEDURAL BACKGROUND
A. Underlying Offense
On May 7, 2008, the Mendocino County Major Crimes Task Force executed a search warrant at defendant’s residence. Three of defendant’s children, ranging in age from one month to four years old, were present at the time of the search. The task force located 33.1 grams of methamphetamine, which was hidden in two different locations at the residence; one of the locations was easily accessible to defendant’s four-year-old daughter. The task force also found packaging material, a digital scale, a working police scanner, some methamphetamine cutting agent, and $1,900 in cash. Defendant’s residence is adjacent to a grammar school, and it has access to the schoolyard through a rear gate.
B. Initial Sentencing and Recall
The trial court initially sentenced defendant to five years in prison, consisting of the middle term of two years for the possession for sale count, plus an additional three-year term for the enhancement. Thereafter, the trial court recalled the sentence and struck the enhancement due to insufficient evidence that the offense took place in a “public area.”
In resentencing defendant, the trial court considered the circumstances in aggravation and mitigation set forth in the probation report, and concluded that the circumstances in aggravation predominated. In so ruling, the trial court noted that defendant had denied responsibility when talking to the probation department; that he had a prior history of three deportations; that there was a large amount of methamphetamine found; that there were children in the residence; and that he had a prior misdemeanor conviction. The trial court also found there was a level of “sophistication and a real sense of... real dealing,” as demonstrated by the “amount of cutting agent, the digital scale, the [police] scanner,” and that sales at defendant’s residence generated “a lot of traffic coming and going.”
The trial court imposed the aggravated term of three years for the underlying offense, thus reducing the aggregate term from five years to three years in state prison. Additionally, the court noted that defendant’s drug dealing took place near a school. Based on these factors in aggravation, the trial court sentenced defendant to three years in prison.
III. DISCUSSION
A. Resentencing
Defendant contends that on resentencing the trial court improperly selected the upper term for the possession for sale in order to achieve a total term as close as possible to the original term imposed despite having struck the school proximity enhancement. Defendant maintains that the trial court should have modified the erroneous portion of the sentence by only striking the enhancement, and that it erred in resentencing him on the possession for sale count. We disagree.
Under section 1170, subdivision (d), a trial court “may within 120 days of the date of commitment on its own motion,... 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.” (Italics added.) Thus, on its face, section 1170, subdivision (d) belies defendant’s claim, as the new sentence was no greater than the initial sentence. Indeed, the new sentence of three years was less than the initial five-year term.
In support of his contention, defendant relies on a line of cases holding that the various portions of a determinate sentence are severable and must therefore be corrected upon resentencing in isolation from the remaining portions of the sentence. (See People v. Drake (1981) 123 Cal.App.3d59, 63-64 (Drake) [that judge made mistake of law about maximum permissible aggregate term provides no basis to undo other parts of sentence that were properly imposed]; People v. Swanson (1983) 140 Cal.App.3d571, 574 (Swanson) [sentencing judge required to base decision on statutory and rule criteria].)
However, another line of cases has criticized the above portrayals of the mechanics of sentencing as unnecessarily “rigid.” (See, e.g., People v. Castaneda (1999) 75 Cal.App.4th 611, 614 (Castaneda); People v. Kelly (1999) 72 Cal.App.4th 842, 846-847; People v. Calderon (1993) 20 Cal.App.4th 82, 88 (Calderon); People v. Stevens (1988) 205 Cal.App.3d1452, 1456-1457 (Stevens); People v. Hill (1986) 185 Cal.App.3d831, 835, fn. 6; People v. Burns (1984) 158 Cal.App.3d1178, 1183, fn. 6.)
For example, in Castaneda, supra, 75 Cal.App.4th 611, the defendant was resentenced by the trial court because the 10-year sentence originally imposed violated a statutory limitation on enhancements (id. at p. 612). The original sentence was comprised of the three-year middle term for assault, with a four-year firearm use enhancement and a three-year great bodily injury enhancement. (Ibid.) On resentencing, the trial court stayed the great bodily injury enhancement and imposed a total sentence of eight years, comprised of a four-year upper term for assault and the four-year firearm use enhancement. (Ibid.) Castaneda held that the new sentence was proper even though the trial court had initially chosen the three-year middle term for assault. (Id. at p. 614.)
In so holding, Castaneda rejected the “rigid” theory of sentencing espoused in Swanson and stated: “ ‘A judge’s subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge’s experiences with prior cases and the record in the defendant’s case, cannot be ignored. A judge’s subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria. [Citations.]’ ” (75 Cal.App.4th at p. 614.) Castaneda also rejected the defendant’s reliance on Drake, noting that Drake “ ‘has been routinely criticized for its characterization of determinate sentences as discrete and severable components capable of being separated out and corrected. “To the contrary, the components of an aggravated term are properly viewed as interdependent when calculating and imposing sentence, and an aggregate term of imprisonment under the determinate sentencing law constitutes a total prison term which is ‘a single term rather than a series of separate terms.’ [Citations.]” [Citations.]’ ” (Id. at p. 613.)
Similarly, in Calderon, supra, 20 Cal.App.4th 82, the court criticized Swanson as having “overstated the case,” reasoning that a judge “[a]t some point... should evaluate the sentence in the aggregate.” (Id. at p. 88, second italics added.) Rejecting Drake and “older cases to the contrary,” the court explained that “[i]t is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence and just as proper for the trial judge to reimpose the same sentence in a different manner.” (Ibid.) Indeed, “ ‘it is not at all uncommon for a trial court to impose an aggregate sentence intended as appropriate total punishment under all of the circumstances, only to discover after an appeal... that a portion of the sentence is infected by illegality.’ [Citation.] A determinate sentence is one prison term made up of discrete components. When one of them is invalid, the entire sentence is infected. [Citations.]” (Ibid.)
Likewise, the court in Stevens, supra, 205 Cal.App.3d1452, criticized the Drake approach as one appearing “ to have been premised on an assumption, explicitly articulated in... Swanson[,supra], 140 Cal.App.3d571, that ‘a sentencing judge is required to base his decision on the statutory and rule criteria, on an analysis of legitimate aggravating and mitigating factors, and not on his subjective feeling about whether the sentence thus arrived at seems too long, too short, or just right. He is not permitted to reason backward to justify a particular length sentence which he arbitrarily determines.’ [Citation.]” (Id. at p. 1457.) As Stevens explains, “the mechanics of sentencing are not necessarily as rigid as portrayed in Swanson. A judge’s subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge’s experiences with prior cases and the record in the defendant’s case, cannot be ignored. A judge’s subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria. [Citations.]” (Stevens, supra, 205 Cal.App.3dat p. 1457.)
Another instructive case is People v. Savala (1983) 147 Cal.App.3d63 (disapproved on other grounds in People v. Foley (1985) 170 Cal.App.3d1039, 1044). There, remand for resentencing was required due to imposition of an improper enhancement. (Id. at p. 65.) The trial court resentenced the defendant to the same term as the original sentence by increasing the principal term to the upper term and staying the enhancement. (Ibid.) The appellate court held this was proper as long as the new aggregate term did not exceed the original aggregate term. (Id. at pp. 68-69.) As Savala aptly observed, and as is apparent in defendant’s situation, “In making its sentencing choices in the first instance the trial court undoubtedly considered the overall prison term to be imposed and was influenced in its choices by the length of the enhancements.” (Id. at p. 70.)
We concur in the reasoning of the line of cases viewing a determinate sentence as a single prison term with interdependent components. Consistent with this authority, we find the trial court properly viewed the sentence as a whole when it struck the enhancement and increased the principal term to the upper term.
B. Cunningham
The trial court imposed the upper term based on the following factors: defendant had denied responsibility when talking to the probation department; that he had a prior history of three deportations; that there was a large amount of methamphetamine found; that there were children in the residence, which was adjacent to a grammar school; and that he had a prior misdemeanor conviction. The trial court also found there was a level of “sophistication and a real sense of... real dealing,” as demonstrated by the “amount of cutting agent, the digital scale, the [police] scanner,” and that sales at defendant’s residence generated “a lot of traffic coming and going.”
Defendant contends that this judicial fact finding supporting the facts in aggravation violated his Sixth Amendment right to a jury trial under Cunningham. We need not reach the question of error, however, because any error in sentencing defendant to the upper term was harmless beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825, 838.) To determine whether such error is harmless, we ask “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.) More precisely, we must ask whether we can conclude, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury....” (Id. at p. 839.) We find that to be the case here.
One of the aggravating factors cited by the trial court in imposing the upper term was that the offense involved a significant amount of methamphetamine. Another aggravating factor was the level of sophistication and planning involved in defendant’s illegal activities. We have no doubt the jury unquestionably would have found either (or both) of these factors to be true. First, defendant possessed well over an ounce of methamphetamine. (See Cal. Rules of Court, rule 4.421(a)(10); see also People v. Maese (1980) 105 Cal.App.3d710, 725 [aggravated sentence for heroin possession proper where defendant in possession of almost one-half ounce of heroin].) Second, the extent of defendant’s methamphetamine dealing was demonstrated by the amount of cutting agent found at his residence, together with the digital scale, the police scanner, and the substantial traffic “coming and going” from defendant’s residence. Accordingly, any error in imposing the upper term, without having submitted the question of the existence of aggravating factors to the jury, was harmless beyond a reasonable doubt.
IV. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.