Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BA284223. Michael S. Luros and Patricia J. Titus, Judges.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ J.
Duane Leon Porter (defendant) appeals after being convicted of drug offenses in case No. YA061614 (the YA case) in June 2006 and following two separate trials, for leaving the scene of an accident (Veh. Code, § 20001, subd. (a)) and of driving while under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) in case No. BA284223 (the BA case) in October 2007. The jury in the second BA case trial found the allegation that defendant inflicted great bodily injury in the commission of the offense within the meaning of Penal Code section 12022.7, subdivision (a), to be true. The trial court found both the allegation that defendant sustained four prior felony convictions within the meaning of the “Three Strikes” law (§§ 1170.2, subds. (a)-(d) & 667, subds. (b)-(i)) and that defendant had served a prior prison term (§ 667.5, subd. (b)) to be true.
All further statutory references are to the Penal Code unless otherwise indicated.
On October 30, 2007, the trial court sentenced defendant on both cases as follows. In the YA case to the high term of five years for the drug possession conviction as the principal term, doubled under the Three Strikes law, for 10 years; the other drug count was to run concurrently. In the BA case, the court imposed the low term of 16 months on the driving under the influence count with a consecutive three-year term for the great bodily injury enhancement and another five-year consecutive term for the prior serious felony enhancement (§ 667, subd. (a)).
Defendant contends that (1) the sentence of three years for the great bodily injury enhancement must be modified to one year, and (2) the upper term sentence in the YA case should be vacated because it deprived him of his right to a jury determination beyond a reasonable doubt, as articulated in Cunningham v. California (2007) 549 U.S. 270 (Cunningham). The people contend that the trial court erred (3) in altering the sentence imposed by a different judge, in a different court, in the YA case, and (4) in imposing the five-year penalty pursuant to section 667, subdivision (a), which was not charged, instead of the two prior prison term enhancements, which were charged.
We modify the sentence and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal pertains only to sentencing matters, we omit a statement of the facts relating to the underlying charges. (See People v. Logsdon (1987) 191 Cal.App.3d 338, 341.)
The YA Case
Before his Vehicle Code violations, defendant was convicted by jury in the YA case of possession of cocaine base for sale (Health & Saf. Code, § 11351.5, count 1) and transportation for sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a), count 2). He admitted one prior felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). The other alleged prior convictions were dismissed.
On June 6, 2006, the trial court in the YA case sentenced defendant to the upper term. Defendant objected to the upper term sentence based upon Blakely v. Washington (2004) 542 U.S. 296 (Blakely) because to impose a greater sentence only on facts found by the trial court would violate the defendant’s Sixth Amendment right to jury trial on those issues. The prosecutor responded that the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) had concluded after Blakely that Blakely did not render California’s sentencing scheme unconstitutional.
The trial court found as aggravating factors that defendant was on probation or parole when the offenses were committed, had been in state prison numerous times, and had committed several crimes of force and fear. It found no factors in mitigation and sentenced defendant to prison for the upper term of five years on his conviction of possession of a controlled substance for sale, doubled to 10 years as a second strike. It stayed the sentence on his conviction of transportation for sale of a controlled substance pursuant to section 654.
The BA Case
Here, defendant was convicted by jury of leaving the scene of an accident and, on retrial of a mistried count, by a second jury, of driving under the influence causing injury (DUI with injury). The second jury found the allegation that defendant inflicted great bodily injury in committing the offense within the meaning of section 12022.7, subdivision (a) to be true. The trial court found the allegation that defendant had suffered four prior felony strike convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) and had served a prior prison term within the meaning of section 667.5, subdivision (b) to be true.
The Sentence
On October 30, 2007, the trial court sentenced defendant in this matter in conjunction with the YA case. It declared the sentence in the YA case to be the principal term and re-imposed the five-year sentence on the possession of controlled substance for sale, doubled as a second strike, and stated that the second count of transporting a controlled substance for sale would “remain as a concurrent subordinate term, which was a high term on that count as well.” Defendant objected to “this court restructuring the [YA case] sentence and imposing a high term without a jury finding aggravating factors or [defendant] admitting to any aggravating factors, enabling the court to impose a high term sentence.”
In the BA case, the trial court struck three of the four prior convictions alleged under the Three Strikes law following defendant’s Romero motion. The defendant was then sentenced on count one of the BA case, DUI with injury, to one-third of the midterm or eight months, doubled, consecutive to the sentence in the YA case. In addition, the defendant was ordered to serve consecutively three years for the great bodily injury enhancement and five years for the serious felony prior conviction pursuant to section 667, subdivision (a). Sentence for leaving the scene of an accident involving an injury was ordered to run concurrent.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
I. Three-year great bodily injury enhancement
Defendant contends that the trial court erred in imposing a consecutive three-year term for the great bodily injury enhancement because that enhancement was subject to the one-third rule in section 1170.1, subdivision (a). The people agree, as do we.
Section 12022.7, subdivision (a) provides that “Any person who personally inflicts great bodily injury on any person... in the commission of a felony... shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”
Section 1170.1, subdivision (a) provides in part: “The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Italics added.)
Section 1170.11 expressly makes the section 12022.7 great bodily injury enhancement subject to the sentencing rule in section 1170.1.
Here, the great bodily injury enhancement was assessed in connection with the DUI with injury conviction. The trial court sentenced defendant consecutively to one-third of the midterm as a subordinate term. Consequently, only a one-year sentence, or one-third of the three-year great bodily injury enhancement, can be imposed. The judgment must be amended to so reflect.
II. Constitutionality of the upper term sentence in the YA case
Defendant contends that the upper term sentence imposed in the YA case and re-imposed in the BA case, violates Cunningham by increasing the maximum sentence allowed by statute based upon facts not found by a jury beyond a reasonable doubt. While acknowledging that we are bound by People v. Black (2007) 41 Cal.4th 799 (Black II), defendant argues that “[t]he reasoning of Black II cannot be reconciled with the decision in Cunningham....”
The people respond that defendant’s “challenge to the upper term [sentence] justifications articulated by the trial court in [the YA case] is foreclosed by his failure to timely appeal his sentence in that case” and that it cannot be contested in this matter because “the original sentencing order by the trial court in [the YA case] must be reinstated....” Nevertheless, the upper term sentence was justified by defendant’s criminal history.
We agree with the people that defendant cannot raise this issue, having failed to appeal it in the YA case. As discussed in part III below, the second trial court here had no discretion in imposing sentence in the YA case but was required to impose the identical sentence as originally imposed by the trial court in the YA case. Therefore, this appeal does not present the question of whether the YA case trial court properly imposed the upper term, but merely whether the BA case trial court faithfully imposed the same sentence. Further, “[w]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay.” (People v. Senior (1995) 33 Cal.App.4th 531, 538.) We see no reason for a different rule when a defendant fails to appeal a prior matter.
Even if defendant could challenge the upper term sentence in the YA case on this appeal, we would reject it on the merits. A brief history of this issue is instructive. In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that, “[o]ther than the fact of 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.” (See also Blakely, supra, 542 U.S. at p. 301.)
In Black I, supra, 35 Cal.4th 1238, the California Supreme Court concluded that Apprendi and Blakely were inapplicable to a trial court’s factual findings of aggravating factors used to impose the upper term under California’s Determinate Sentencing law (DSL). It was after Black I and before Cunningham that defendant was originally sentenced in the YA case.
The United States Supreme Court in Cunningham disagreed with Black I and held that California’s DSL was unconstitutional to the extent that it authorized the trial court to impose an upper term sentence based on facts that were found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. 293.) The high court concluded that “[i]n accord with Blakely... the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, at p. 288.)
After Cunningham, in Black II, the California Supreme Court reasoned that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, at p. 813.) Sentencing in this matter occurred after the decision in Black II.
The United States Supreme Court has consistently stated that the right to a jury trial does not apply to the fact of a prior conviction. (Blakely, supra, 542 U.S. at p. 301; see also Black II, supra, 41 Cal.4th at p. 818.) This exception is not to be read too narrowly. (Black II, at p. 819.) The fact of a prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) This exception extends to the defendant being on probation or parole at the time of the offense. (People v. Towne (2008) 44 Cal.4th 63, 80.)
Applying Black II here, we conclude that defendant was not deprived of due process or his constitutional right to a jury trial by imposition of the upper term in the YA case. His upper term sentence was based in part on the trial court’s finding that he was on probation or parole at the time the charged offenses were committed. This was the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court’” and was therefore within the prior conviction exception to the jury trial requirement in Apprendi and its progeny. (Black II, supra, 41 Cal.4th at pp. 818, 820; People v. Towne, supra, 44 Cal.4th at p. 80; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) This single factor made defendant eligible for an upper term sentence, and the trial court was free to consider other factors in imposing it. (Black II, at p. 813.)
III. Alternative sentence for the YA case
In the YA case, the trial judge sentenced defendant to the upper term of five years on his conviction of possession of a controlled substance for sale, doubled to 10 years as a second strike, and stayed sentence on his conviction of transportation for sale of a controlled substance pursuant to section 654. When defendant was sentenced in the BA case, that trial court made the sentence in the YA case the principal term and imposed the same 10-year term for defendant’s conviction of possession of a controlled substance for sale and, apparently inadvertently, imposed a five-year concurrent term for his conviction of transportation for sale of a controlled substance.
The abstract of judgment in this matter contains no indication of any sentence on the transportation of a controlled substance count and must be corrected.
Though the people urge that this matter must be remanded for resentencing, while we agree that the trial court was not permitted to deviate from the original sentence, this error does not warrant remand.
A trial court cannot modify or reduce a sentence previously imposed, nor may one superior court judge overrule another. (People v. Garcia (2006) 147 Cal.App.4th 913, 916-917.) In sentencing defendant on his conviction in the YA case of transportation of a controlled substance, the trial court here stated that that sentence should “remain” concurrent. (Italics added.) This statement suggests that the trial court intended to impose the same sentence as was originally imposed in the YA case, but inadvertently failed to stay the sentence, instead imposing a concurrent sentence. We therefore modify the sentence on that count to comport with the original trial court’s stay. As there is no discretion required for this modification, remand is unnecessary to effect the change.
IV. Sections 667, subdivision (a) and 667.5 subdivision (b) enhancements
The trial court imposed the five-year serious felony enhancement in section 667, subdivision (a), though that enhancement was not alleged in the operative amended information. The trial court also failed to impose or dismiss the one-year prior prison term enhancement under section 667.5, subdivision (b). The people contend that the serious felony enhancement should not have been imposed because it was not alleged in the information and that this matter must be remanded for the trial court to either dismiss or impose the two prior prison term enhancements. We agree.
The people assert that the trial court found that there were two prior prison terms. However, there appears to have been only one prior prison term established, the 1988 violation of section 245, subdivision (a)(2).
The purpose of the information is to provide a criminal defendant with notice of the charges and to allow him to prepare a defense and avoid surprise. (People v. Valladoli (1996) 13 Cal.4th 590, 607; People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) This means that except for a lesser included offense, a defendant cannot be convicted of an offense of which he has not been charged, even if there was evidence at trial to show that he committed the offense. (People v. Haskin, supra, at p. 1438.) The same rule applies to enhancements. (Ibid.)
The last amended information filed on November 16, 2006, just prior to the retrial of the driving under the influence count, did not allege the serious felony enhancement in section 667, subdivision (a). Defendant could not therefore be sentenced for that enhancement.
Although the amended information filed on August 7, 2006, before the first trial in this matter, included an allegation of three serious felony enhancements under section 667, subdivision (a), that pleading was superseded by the November 16, 2006 information, applicable at the time of the retrial, and therefore performed no further function. (People v. Mack (1961) 197 Cal.App.2d 574, 578 [“‘“It is well established that an amendatory pleading supercedes the original one, which ceases to perform any function as a pleading”’”], quoting Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 384.)
A prior prison term enhancement must be either imposed or stricken. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561; People v. Irvin (1991) 230 Cal.App.3d 180, 191-192.) Here, the trial court failed to do either. We must therefore remand for that purpose.
DISPOSITION
The judgment is amended to strike the five-year serious felony enhancement in section 667, subdivision (a), reduce the great bodily injury enhancement in connection with count 1 from three years to one year, and stay the sentence on the transporting of a controlled substance conviction in case No. YA061614. The judgment is otherwise affirmed. The matter is remanded to the trial court with directions to either impose sentence or dismiss the prior prison term enhancement (§ 667.5, subd. (b)) and to correct the abstract of judgment to reflect the foregoing corrections and modifications.
We concur BOREN, P. J., DOI TODD, J.