Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA243479. Bradford L. Andrews, Judge.
Donna L. Harris, 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, Kenneth C. Byrne and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Marta Ramirez was sentenced in 2005 on her manslaughter conviction under California’s former determinate sentencing law (DSL), which was held unconstitutional by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 (Cunningham). She appealed at that time and we affirmed the judgment. The United States Supreme Court granted certiorari and remanded for further consideration in light of Cunningham. We, in turn, vacated the judgment and remanded the matter to the trial court for resentencing. Appellant was resentenced under the guidelines established by the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825, 845-847 (Sandoval), which appellant now claims to be unconstitutional. Because we are required under the doctrine of stare decisis to follow Sandoval, we reject appellant’s contention and affirm the judgment.
See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
BACKGROUND
Appellant was charged with murder, but convicted of voluntary manslaughter. (Pen. Code, § 192.) She shot her husband three times at close range in the head and chest while he slept. The information alleged pursuant to Penal Code section 12022.5, subdivision (a), that she had personally used a gun in the commission of the offense, and the jury found the allegation to be true. On May 5, 2005, the trial court sentenced appellant to 16 years in prison. Her term included the middle term of six years for manslaughter, plus the upper term of 10 years for the gun-use enhancement. Appellant appealed, and we affirmed the judgment People v. Ramirez (June 13, 2006, B183237 [nonpub. opn.]). Relying on People v. Black (2005) 35 Cal.4th 1238, we rejected appellant’s contention that her right to a jury trial had been violated by the sentencing court’s imposition of the upper term for the gun use based upon finding aggravating factors that had not been alleged in the information or found true by the jury.
On February 20, 2007, the United States Supreme Court granted certiorari and vacated the judgment, remanding for further consideration in light of Cunningham, which had overruled People v. Black, supra, 35 Cal.4th 1238, and invalidated California’s determinate sentencing scheme. We then recalled the remittitur and reviewed appellant’s sentence in light of Cunningham as well as Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). (See People v. Ramirez (April 17, 2008, B183237 [nonpub. opn.]).) We found that the trial court had imposed the upper term in violation of appellant’s right to jury trial, and we vacated the sentence and remanded for resentencing. In all other respects, the judgment was affirmed.
The trial court resentenced appellant on October 22, 2008. For the manslaughter conviction, the court selected the upper term of 11 years, plus the 4-year middle term enhancement for the use of a firearm, for a total prison term of 15 years. In selecting the upper term of 11 years, the trial court stated its reasons as follows:
“I believe that the victim in this case was particularly vulnerable where at the time of the event in this case the... victim was asleep. It appears that there was considerable premeditation on behalf of the defendant in this case in that she had previously obtained a weapon, that she waited until the victim was asleep, that she shot the victim at close range several times, once in the head, twice in the chest.
“And that in so doing, she has ultimately deprived her own children of both parents in this case for a considerable period of time. Obviously,... they’re deprived of the victim’s guidance permanently, and hers, at least while she is in custody. She has burdened her own daughter, the oldest daughter, with the task of raising the younger children, and... I believe that she was in a position of trust as it relates to the victim. They were married for a number of years.”
Appellant filed a timely notice of appeal.
DISCUSSION
As she did in her first appeal, appellant contends that her sentence violates her right to a jury trial, because in choosing to impose the upper term, the court relied on factors not found by a jury.
“[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, supra,549 U.S. at pp. 274-275, citing Blakely, supra, 542 U.S. at p. 303, and Apprendi, supra, 530 U.S. at p. 490.) At the time of appellant’s conviction, the DSL provided for a lower, middle, and upper term, and it required the sentencing court to impose the middle term unless there were circumstances in aggravation or mitigation of the crime. (Pen. Code, former § 1170, subd. (b).) The court held that because the upper term may be imposed only when the trial judge finds an aggravating circumstance, the statutory maximum under the DSL was the middle term. (Cunningham,at p. 288.) Since the DSL permitted a trial court to impose a term greater than the maximum based on facts found by the court rather than by a jury beyond a reasonable doubt, it violated a defendant’s Sixth and Fourteenth Amendment rights to a jury trial. (Cunningham, at pp. 293-294.)
In response to Cunningham, the California Legislature amended the DSL to give the sentencing court discretion to choose any one of the three terms. (See Pen. Code, § 1170, as amended by Stats. 2007, c. 3, § 2, pp. 5-7.) The Legislature did not expressly make the statute retroactive, and the California Supreme Court has found no legislative intent to do so by implication. (Sandoval, supra, 41 Cal.4th at p. 845.) However, in Sandoval our Supreme Court exercised its judicial authority by adopting the procedure enacted by the Legislature for all Cunningham resentencings, and the court advised sentencing courts to look to the amended sentencing rules for guidance. (Sandoval, at pp. 845-847; Cal. Rules of Court, rule 4.406 et seq.) The high court held that the recommended procedure would not violate the ex post facto or due process clauses of the federal Constitution. (Sandoval, at pp. 855-857.)
When appellant was resentenced in 2008, the trial court followed the procedure adopted by the California Supreme Court in Sandoval. She contends that the Sandoval procedure violated her federal constitutional rights in violation of the ex post facto clause, resulting in a denial of due process. We follow Sandoval as well, and we reject these contentions. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Appellant also contends that the new sentence violated the double jeopardy clause of the federal Constitution as well as state statutory and constitutional protections against double jeopardy. Because she did not challenge her resentencing on these grounds, she has not preserved them for review. (See People v. Memro (1995) 11 Cal.4th 786, 821.) Further, her new sentence represented an exercise of discretion within the range authorized by Sandoval. While it is subject to review for an abuse of discretion, appellant has not raised that issue here. (Sandoval, supra, 41 Cal.4th at pp. 847-848.) Moreover, because the original sentence was unauthorized under the federal Constitution and the total sentence was shorter than the original sentence, there is no double jeopardy violation. (See People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
DISPOSITION
The judgment is affirmed.
We concur: FLIER, ACTING P.J. BIGELOW, J.