Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MCYKCRBF030000539
HULL, J.This is an appeal from resentencing on remand.
After a court trial held in November 2003, defendant was convicted of three counts of committing a lewd and lascivious act on a child aged 15, defendant being at least 10 years older than the child (Pen. Code, § 288, subd. (c)(1)), six counts of unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (d)), one count of oral copulation with a minor (Pen. Code, § 288a, subd. (b)(2)), and two counts of attempting to dissuade a witness. (Pen. Code, § 136.1, subd. (a)(2).) Defendant was sentenced to state prison for the upper term of four years for one of his convictions of unlawful sexual intercourse, given consecutive one-year sentences (one-third of the middle term) for two of his other convictions of unlawful sexual intercourse, given a two-year consecutive term for one of his convictions of attempting to dissuade a witness and concurrent middle terms for the remainder of his convictions, for a total prison sentence of eight years. Defendant appealed his conviction.
In People v. Sindorf (Dec. 11, 2007, C045737 [nonpub. opn.] (Sindorf I)), we concluded, inter alia, that the trial court’s imposition of the upper term for one count of unlawful sexual intercourse (count two) contravened Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). We remanded for resentencing on that count only “in a manner consistent with the amendments to the [determinate sentencing law] adopted by the Legislature.” (Sindorf I, supra, C045737.) The trial court again imposed the upper term.
Defendant again appeals, this time arguing that on resentencing, the trial court was bound by this court’s previous opinion that the upper term contravened Cunningham. He also contends the upper term sentence violates Cunningham, notwithstanding People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval)and the amended version of Penal Code section 1170, and violates the ex post facto prohibition and his due process rights. We affirm the judgment.
Facts and Proceedings
It is not necessary for us to recount the evidence presented at trial except to the extent it is pertinent to our resolution of this appeal.
At the sentencing hearing on remand held on August 22, 2008, defense counsel asked the court to impose the middle term of three years for count two, unlawful sexual intercourse. The prosecutor asked the court to reimpose the upper term of four years, commenting that defendant’s abuse of his position of trust alone would justify the upper term. In imposing the upper term, the trial court stated the following:
“First of all, I was the judge who sat on the trial. And I did listen to all of the witnesses and viewed all of the evidence. And, of course, I did note that the victim in this matter at the outset when she was a teenager, 15 or 16 years of age, did for some period of time deny that any of these alleged acts--or any of the acts alleged I should say were committed.
“But the evidence that was presented at the trial thereafter the court found, not just beyond a reasonable doubt, but frankly, overwhelming with regard to the defendant’s guilt. So there simply is no question in the court’s view of a reasonable doubt in this matter.
“With regard to count 2, there are a number of factors that the court considers appropriate in analyzing the term to be imposed. The court does certainly note that the defendant had no prior criminal record. That is the only factor in mitigation that the court can find.
“And the court also considers that, not nearly as convincing as it might otherwise be given, the fact that the offense in this case took place over a period of--I believe it was approximately seven months repeated offenses over that period of time. If this were one offense on one day, or even multiple offenses on one day, the factor of no prior record might have more weight in the court’s view. But given that fact that we’re talking about multiple offenses over many months, that factor is not of much persuasive value for the court.
“The court does find that it is an aggr[av]ating factor that the defendant induced others to participate in the commission of the crime or crimes. There was evidence of individuals that the defendant had co-opted either with her knowledge or without, to help him commit these various crimes. The court considers that an aggr[av]ating factor.
“And the court also believes that these crimes were carried out in a manner that indicated planning, sophistication or professionalism in the sense that there were multiple plans and meeting places and signals and places and opportunities where these offenses were carried out that clearly indicated planning and sophistication.
“And, next, the defendant clearly took advantage of a position of trust and confidence by ingratiating himself with the victim’s mother with whom he worked. And then in that position of friend of the family and so forth, he got the trust of the victim and severely abused that.
“And, finally, with regard to lack of remorse, the victim stated very clearly when we were here for sentencing a number of years ago, all of the trauma and pain that this situation has caused her. And the court considers the defendant’s actions with regard to the victim, who was a child when these offenses took place, to be despicable. And the court certainly would have hoped that the defendant would have the humanity and integrity of at least admitting his offenses and saying so so that this victim could at least have some basis from his efforts to heal. And he did not do that.
“Given the minimal weight that the court gives to the mitigation--mitigating factor of no prior sentence--or no prior criminal record, I should say, the court finds that any one of these aggr[av]ating factors is adequate to justify the court’s discretion in selecting the upper term with regard to count 2.
“And so the court does select the upper term of four years with regard to count 2. So the defendant, as a result of that, is sentenced to the precise same term that we issued when the sentencing came up in December 2003.”
Discussion
Cunningham held California’s determinate sentencing law (DSL) “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent it allows a judge to impose the upper 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 pp. 274-275 [166 L.Ed.2d at p. 864].) Applying Cunningham, People v. Black (2007) 41 Cal.4th 799 held 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.” (Black, at p. 816.)
In response to Cunningham, the DSL (Pen. Code, § 1170) was amended, effective March 30, 2007. (Stats. 2007, ch. 3, § 2.) As amended, Penal Code section 1170 provided that the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge, and a trial judge has the discretion to impose an upper, middle or lower term based on stated reasons. “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.... The court shall set forth on the record the reasons for imposing the term selected....” (Pen. Code, § 1170, subd. (b).)
As further amended and effective when defendant was resentenced in August 2008, Penal Code section 1170, subdivision (b), provided: “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.... In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports including... statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim... and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (Stats. 2007, ch. 740, § 1.)
In Sandoval, supra, 41 Cal.4th 825, the defendant had been sentenced to the upper term under the pre-Cunningham version of the DSL and she claimed her sentence contravened Cunningham. (Sandoval, supra, 41 Cal.4th at p. 837.) Sandoval agreed. The aggravating factors cited by the trial court were based on facts neither admitted by the defendant nor established by the jury’s verdict. (Id. at pp. 837-838.) Sandoval was unable to find the error harmless beyond a reasonable doubt and remanded for resentencing pursuant to modified procedures equivalent to the sentencing scheme set forth in the amended version of the DSL. (Id. at pp. 837-843, 846-848, 853.)
The defendant in Sandoval contended that “she [wa]s disadvantaged by the application of the revised scheme, because she [would lose] the benefit of [Penal Code] section 1170’s requirement that the middle term be imposed in the absence of any aggravating or mitigating circumstances” and thus, the sentencing scheme violated the ex post facto clause. (Sandoval, supra, 41 Cal.4th at p. 854.) Sandoval stated that “whether a change in the sentencing process violate[d] the ex post facto clause depend[ed] on the significance of the impact” on the defendant. (Id. at p. 854.) Because the defendant had previously been sentenced to the upper term under the prior version of the DSL, Sandoval concluded there was no ex post facto violation because application of the modified procedures would not result in a harsher term but instead would give the trial court greater discretion to impose the lower term. (Id. at pp. 854-855.) Sandoval also concluded that the modified procedures did not violate defendant’s due process rights in that the defendant had been on notice that she could receive the upper term. (Id. at pp. 855-857.)
In Sindorf I, we found that imposition of the upper term violated Cunningham because the court relied on aggravating factors not found by a jury or admitted by defendant and defendant had no prior record. Applying Sandoval, we could not find the error harmless beyond a reasonable doubt and remanded for resentencing. (Sindorf I, supra, C045737.)
In resentencing on remand, the trial court relied on several facts, all of which, defendant contends, suffer from the same deficiency as before, that is, the lack of jury findings. Defendant contends the trial court was bound by this court’s prior ruling. Defendant is correct that the trial court was required to follow our directions on remand--here, it did just that. We directed that defendant be resentenced on count two “in a manner consistent with the amendments to the [DSL] adopted by the Legislature.” (Sindorf I, supra, C045737.)
When defendant was resentenced, the amended version of Penal Code section 1170 applied and the upper term, not the middle term, was the statutory maximum that could be imposed without additional factfinding. (Sandoval, supra, 41 Cal.4th at pp. 850-851.) The trial court imposed the upper term for the following reasons. The court found that multiple offenses occurred over a lengthy period of time; defendant induced others to participate in the commission of the crime or crimes; the crimes were carried out in a manner that indicated planning, sophistication or professionalism; defendant took advantage of a position of trust; and defendant lacked remorse. The court noted that defendant had no prior criminal record but found any one of the other facts outweighed it.
Imposing the upper term for the stated reasons was well within the trial court’s discretion. Since the upper term is now the statutory maximum, the trial court did not violate defendant’s Sixth Amendment rights when it sentenced him to the upper term.
Defendant claims that Sandoval and the amended version of Penal Code section 1170 did not solve the constitutional problem identified by Cunningham, that the middle term remains the presumptive term, and that the DSL still violates his Sixth Amendment rights. Sandoval resolved these issues contrary to defendant’s claims. We are bound to follow Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant’s claim that his sentencing under the amended version of Penal Code section 1170 amounted to an unconstitutional ex post facto application of law and violated due process is also foreclosed by Sandoval.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.