Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. VA076824,Michael L. Schuur, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Keon Taylor.
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Tramaine King.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Michael W. Whitaker, Susan Sullivan Pithey, and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
COOPER, P.J.
This matter is before us following the United States Supreme Court’s grants of certiorari and remand of appellants’ Keon Taylor and Tramaine King’s appeals, for reconsideration in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). We will conclude that the judgment and sentence with respect to Taylor must again be affirmed, but that King must be resentenced, under the procedure set forth in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
Before analyzing the Cunningham issue, we adopt and restate the portions of our original decision that stated the underlying facts, and rejected Taylor’s non-sentencing contention, that there was insufficient evidence to support the jury’s finding of a gang enhancement, under Penal Code section 186.22, subdivision (b)(1).
Appellants appeal from judgments imposed after a jury convicted them of robbery (Pen. Code, § 211; undesignated section references are to that code), assault with a firearm (§ 245, subd. (a)(2)), and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury further found that Taylor personally used a firearm (§ 12022.53, subd. (b)) and inflicted great bodily injury (§ 12022.7) in the first two counts, and that he committed all three offenses for the benefit of a criminal street gang, with specific intent to further criminal conduct by gang members (§ 186.22, subd. (b)(1)). With respect to King, the jury found that he personally used a deadly weapon in the robbery (§ 12022, subd. (b)(1)), and that a principal was armed with a firearm (§ 12022, subd. (a)(1)) in both the robbery and the assault with a firearm. The jury acquitted King of one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378), and the court granted his motion for acquittal as to a great bodily injury allegation and gang enhancement charges (§ 186.22, subd. (b)(1)) on the counts of which he was convicted. Taylor admitted having suffered a prior serious felony, strike conviction (§ 667, subds. (a)-(i)).
Taylor was sentenced to a term of 37 years, and King was sentenced to a term of seven years. Both appellants contend that their upper base term sentences were unconstitutionally imposed without jury findings (Blakely v. Washington (2004) 542 U.S. 296 (Blakely)). Taylor also contends that there was insufficient evidence to establish the elements of the gang enhancement finding.
FACTS
Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that on the morning of May 2, 2003, the victim, Andre Bowen, visited a friend in Bellflower, who had said he knew someone who had a car for sale. Appellant King – whom Bowen identified at trial – arrived, driving a grey 1982 Oldsmobile Cutlass. Bowen inspected it, and asked King about ownership papers and a chrome strip missing from a door. King said he had the pink slip and the strip at home, and asked if Bowen wanted to test drive the vehicle.
With King, Bowen drove the car to an apartment complex several blocks away. King said he would go inside to get the paperwork. When he returned, he did not have it. He told Bowen he was waiting for a friend to bring a speaker box, even though Bowen already had told King he did not want the speaker box. Bowen said he wanted to see the papers or he would leave, and King again went inside. He returned with appellant Taylor, whom Bowen also identified at trial. Taylor was carrying a gun. He raised it and pointed at Bowen, telling him not to move.
Bowen described the gun as about 18 inches long, with two handles and a long barrel with holes. The barrel was neither black nor silver, but khaki-like. Bowen said it resembled a TEC-9.
King pushed Bowen a bit, and Taylor swung the gun, grazing Bowen’s cheek with the gun barrel. Bowen stated they could have his money, but Taylor told him to shut up, and struck him on the chin with the gun, drawing blood. Taylor pressed the gun against the back of Bowen’s head, and King went through his pockets. Taylor stated he was going to blow Bowen’s off, and repeatedly said, “Blood.”
Asked where his money was, Bowen so stated, and put his hand in a pocket to remove his wallet. King drew a chrome-colored knife and swung it at Bowen, grazing him. Appellants then took Bowen’s cell phone and wallet, which contained $1,600, intended for the car, and personal identification papers. Taylor also took Bowen’s paycheck, but handed it back on Bowen’s request. Taylor ordered Bowen to get on his knees. With the gun to Bowen’s head, Taylor stated, “This is how we do it in L.A. Blood L.A. Swans.”
King then walked to the Cutlass and drove off, and Taylor left the scene through the apartment complex. Bowen walked that way too, and saw Taylor get into the backseat of a burgundy Dodge Intrepid, whose license number he noted. Bowen flagged down a sheriff’s deputy, told her he’d been robbed, and reported the license number of Taylor’s vehicle. Subsequently, Bowen was transported by ambulance to an emergency ward, where he received five stiches to his chin. It became scarred, and his jaw continued to pop at the time of trial.
Bowen subsequently identified both appellants from photo displays. He referred to Taylor as “Rockafella,” because that was the name Taylor had used in a telephone call to Bowen before King arrived with the Cutlass.
Vanita Leake, the owner of the Dodge, recounted that in the spring or summer of 2003 she had lent it to appellants, whom she identified at photographic show-ups and at trial. She had known them as Tre and Rockafella. Other than relatives whom she accompanied, she had not lent the car to anyone else during the weeks surrounding the offenses. On May 7, 2003, she had informed Los Angeles County Sheriff’s Detective Phillip Santisteven that she had lent the car to appellants within two weeks. She testified that appellants had offered to pay her for it, and she had needed the money.
On May 27, 2003, Detective Santisteven arrested Taylor at his home, and searched it, under warrant. The detective, assigned to gang detail since 2000, seized from a room identified as Taylor’s several pieces of paper that bore handwritten references to “Swans,” “84,” “FSB,” Rockafella and Taylor, as well as other abbreviations he believed might be gang-related. On arrest and booking, Taylor bore an “84” tattoo on his right arm, and a tattoo on his left arm stating, “In loving memory of Joe Boy.” Detective Santisteven later interrogated King, who confirmed that he owned the Oldsmobile, but claimed he hadn’t driven it for about a year. At a search of King’s residence, Sheriff’s Deputy Mark Brooks found a handgun, wrapped in a towel, under the driver’s seat of the Cutlass, which was in a garage. This gun did not resemble a TEC-9.
John Radke, a Los Angeles Police Detective assigned to 77th Street gang detail for over 10 years, had investigated the Swan Bloods gang, the largest gang in the area, throughout that time. He testified as follows. There are subsets of the gang, with different territories, and named for streets including “84.” The gang includes 400 to 500 members. Its graffiti includes “FSB,” meaning Family Swan Bloods, and the numbers, 77, 79, 80 and 84. Often members obtain tattoos, which may represent the set number. Tattoos signify commitment to the gang. The Swans are continuously engaged in robberies, murders, assaults with deadly weapons, and narcotics dealing. It is not unusual for them to commit crimes outside their territory.
Based upon his review of the case file, discussions with the investigating officer and the victim, and Taylor’s tattoos and his proclaiming of the Swans during the offense, Detective Radke opined that Taylor was a member of the gang. The detective stated that Taylor’s tattoo, “In loving memory, etc.,” was of a type common among gang members, commemorating others who have been slain. Taylor’s moniker was Rockafella. The detective explained the many gang terms on the papers found at Taylor’s home, including MSB (Mad Swan Bloods) ES (Eastside), ESMSB, FSB, Rock-a fela. He opined that Taylor’s naming the Swan Bloods during the crime was to proclaim that it was being committed on behalf of that gang. The statement also provided intimidation against testifying.
Regarding pattern of criminal gang activity, under section 186.22, subdivision (e), Detective Radke testified that a Swan Blood, Rodney Green, had been convicted of robbery on September 30, 2002, and that another, Andre Morgan, was convicted of robbery on May 29, 2003. The detective stated he believed the present offenses had been committed for the benefit of or in association with the gang, because of Taylor’s announcing its name – declaring his association – when stating that “this is how we do it,” and because of his gang membership. The benefit to the gang would be making it more notorious, building its reputation, and creating fear that would facilitate commission of more crimes. Moreover, the loot would be shared within the gang. Based on the same evidence, Detective Radke opined that appellants committed the crime with the specific intent to promote, further or assist criminal conduct of the L.A. Swans.
The basis for Detective Radke’s opinion that King too was a Swan Blood was that he had committed, with another member (Taylor), a crime in which the gang had been invoked, and because Swan Bloods do not ordinarily commit crimes with non- members. As noted at the outset, the trial court granted King’s motion under section 1118.1 with respect to the gang enhancement charge.
On cross-examination, Detective Radke acknowledged that some crimes committed by gang members are not for the gang’s benefit or with the statutory intent. But he opined that this is not case when the gang is announced during the crime. Detective Radke was not aware of Taylor’s having been involved in any other crimes by the Swans. He stated that the age of tattoos could affect his opinion of gang membership. But the detective held that opinion regarding Taylor, for the reasons stated – the utterance, the tattoos, and the writings – even though there was no evidence Taylor had worn red clothing (the Bloods’ favored color), and no group photos of him with other gang members had been discovered. Detective Radke was personally acquainted with most, but not all, of the Swan Bloods’ members. He added that individuals who are not gang members may also promote or assist a gang.
In his defense, Taylor called Clayton Hollopeter, Executive Director of the Boys and Girls Clubs of San Gabriel Valley and a Los Angeles County Probation Commissioner, who had participated in numerous conferences on gangs, had created a gang-intervention program in El Monte with its police chief, and had frequently qualified as an expert on gang matters.
Hollopeter testified that tattoos of a gang’s name, often abbreviated, signified allegiance and loyalty, and would indicate that “at that time” the bearer was affiliated with a gang. Later, he stated that they showed affiliation as of when the tattoo was applied. He was not too familiar with the L.A. Swans. He stated it would not be unusual for a gang to commit crimes outside its area and in adjacent ones, but these would be a minority.
Hollopeter opined that a robbery committed by two persons, one of whom exclaimed a gang name during it, could be a gang crime as opposed to a personal one. Other factors that would make that more probable would be that the victim was a member of a rival gang, or that the perpetrator was an established gang member and had committed crimes before. He opined that the more or less one is involved in a gang, the more likely or not one is to wear its color. Returning to the present offense as a hypothetical, Hollopeter believed that utterance of the Swans’ name near the end of the crime, rather than at its outset, made it less strong an indicator of a gang offense. Overall, he opined, the offenses as committed could have been for the benefit of the gang, but he didn’t believe so.
In Hollopeter’s opinion, the writings seized from Taylor’s home contained gang writing, by a gang member. However, he did not believe that the crimes had been directed by the gang, or committed for its benefit, or with specific intent further or assist its criminal conduct.
On cross-examination, Hollopeter admitted that uttering a gang identification at the end of the crime, as in a drive-by, could serve as an intimidating announcement. He also acknowledged that a book to which he had contributed referred together to drive-bys and crimes in which a gang slogan is yelled.
DISCUSSION
Taylor contends that there was insufficient evidence to establish the two dynamic elements of the gang enhancement finding, that (1) he committed the offense for the benefit of, at the direction of, or in association with a criminal street gang, and did so (2) “with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) The scope of appellate review of this issue is narrow. “‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) In so determining, we “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Ibid.) The evidence must be substantial, “that is, evidence which is reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) The ultimate inquiry is whether “‘any rational trier of fact could have found the essential elements of the [enhancement] beyond a reasonable doubt.’” (Id. at p. 576.)
Taylor does not contest the showing of such subsidiary elements as the existence of the gang, including its “pattern of criminal gang activity.” (See § 186.22, subds. (f), (g); People v. Gardeley (1996) 14 Cal.4th 605, 615-617.)
Applying these standards to the evidence at trial, we believe there was sufficient evidence to establish both challenged elements of the gang enhancement with respect to Taylor. First, Taylor personally displayed substantial indicia of affiliation with or membership in the L.A. Swans Bloods gang, and in particular its 84th Street sub-set. Taylor’s “84” tattoo, and the graffiti-like writing seized at his home, explicitly reflected devotion to that gang. Taylor claims that this evidence did not prove him to have been a member of the gang at the time he committed the offenses, because it was not shown when he acquired the tattoo, and the writings included a number that could be construed as a date six months before the robbery and assault. But this is an argument best made (if at all) to a trier of fact. It does not negate the strong inferences of contemporaneous membership the evidence generated.
Moreover, there was further evidence of that fact. Most significantly, Taylor invoked not only the name of the gang, but also its involvement, when he stood with his gun pressed against Bowen’s head, and declared, “This is how we do it in L.A. Blood L.A. Swans.” This contemporaneous invocation of the gang resolves any question about Taylor’s affiliation during the events. And it also constitutes the most compelling evidence supporting Detective Radke’s opinions that Taylor committed the offenses in the manner and with the intent that he now seeks to disclaim – in association with or for the benefit of the gang, and with the intent to promote or assist in criminal conduct by its members.
Especially in view of Taylor’s reference to his gang with regard to the way in which “we do it in L.A.,” Detective Radke’s opinions and the jury’s findings about the connection and specific intent of Taylor’s present criminality are supported by substantial evidence. Verbalizing to the victim of a crime during its commission the identity of the perpetrator’s gang is a familiar accompaniment to crimes committed on behalf of gangs. As Detective Radke testified, such articulation not only evidences that the crime is being committed on behalf of the gang, but also often effects the purpose of facilitating gang-related offenses, by intimidating the victim and others as witnesses, and by instilling fear of the gang that will decrease resistance to its criminal efforts. Expert evidence of these purposes and effects have previously been held to register substantial evidence of one or both of the elements of the gang enhancement now in contest. (See People v. Gardeley, supra, 14 Cal.4th at p. 619; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384.)
Conversely, it was the absence of such evidence, in part, that led to the holding of lack of substantial evidence for a gang enhancement in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103-1104, cited by Taylor.
From the evidence discussed above, a reasonable trier of fact could find beyond a reasonable doubt the elements of the gang enhancement that Taylor disputes. His further factual arguments, regarding such things as the crimes having been committed outside the Swans’ territory (which both experts acknowledged was substantially possible), and King’s having been found not subject to the same findings, do not impair the sufficiency of the evidence to support this portion of the verdict.
We turn now to appellants’ sentencing contentions, which we have been directed to reconsider. The issues arise from the trial court’s imposition of the upper term of five years on count 1, second degree robbery, as the principal term for both appellants. (In Taylor’s case, that term was doubled under the three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).)
At sentencing, the trial court stated with respect to each appellant that it was imposing the upper term because the factors in aggravation predominated over those in mitigation. Before so stating, the court adopted the aggravating factors identified in each appellant’s probation report, and struck as factually unsupported a single mitigating factor. The aggravating factors with respect to Taylor were (1) the crime involved great violence, great bodily harm, threat of such harm, or other acts disclosing a high of cruelty, viciousness, or callousness; (2) the victim was particularly vulnerable; (3) the planning, sophistication, or professionalism with which which the crime was carried out, or other facts, indicated premeditation; and (4) the appellant was on probation or parole when he committed the crime. (Cal. Rules of Court (hereafter rules), rule 4.421 (a)(1), (a)(3), (a)(8), (b)(4).) With respect to King, the court found factors (1)-(3).
On appeal, both appellants argued that enhancement of their base term sentences based on aggravating factors found by the court, not the jury, violated the right to jury trial under the Sixth and Fourteenth Amendments, as expounded in Blakely, supra, 542 U.S. 296. We summarily rejected these contentions, citing the California Supreme Court’s ruling, in People v. Black (2005) 35 Cal.4th 1238, that California’s system of upper term sentencing did not run afoul of Blakely and related cases.
Thereafter in Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court determined that California’s provisions for upper term sentencing, based on aggravating findings made by the trial court and by a preponderance of the evidence, did violate the constitutional right to jury trial, as previously expounded in Blakely, supra, 542 U.S. 296, and other cases. In the process, Cunningham disapproved the contrary analysis in Black, supra, 35 Cal.4th 1238. (Cunningham, 127 S.Ct. at pp. 868-871.)
The high court then granted appellants’ petitions for certiorari, and remanded the case to us for reconsideration in light of Cunningham, 127 S.Ct. 856 . We requested and received supplemental briefs from the parties, concerning the effect, if any, on appellants’ sentences of not only Cunningham but also People v. Black (2007) 41 Cal.4th 799 (Black II)and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), in which our Supreme Court had articulated how sentences should be treated in view of Cunningham.
We first consider Taylor’s upper-term sentencing. Taylor contends that because the aggravating factors that produced his sentence were not found by the jury, beyond a reasonable doubt, imposition of the high term violated his jury trial rights, as expressed in Blakely, supra, 542 U.S. 296, and more recently in Cunningham. However, like Blakely, Cunningham restated an exception to the jury-trial requirement for sentence-aggravating factors: “Except for 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.’” (Cunningham, supra, 127 S.Ct at p. 868.)
This exception to the jury requirement is not to be read so narrowly as to limit it to the fact of a conviction. Rather, other related factors, attached to prior convictions and determinable by reference to their records, may be judicially determined. (Black II, supra, 41 Cal.4th at pp. 818-819.) For example, People v. Yim (2007) 152 Cal.App.4th 366, 370-371, held there was no departure from Cunningham, supra, 127 S.Ct.856, in imposing the upper term based on non-jury findings that the defendant had committed the offense while on parole, and had performed poorly on parole (see rule 4.421(b)(4), (5).) Here quite similarly, the court found as an aggravating factor that Taylor had committed the robbery while on probation for a prior felony conviction (rule 4.421(b)(4)). That finding legitimately supported the court’s sentencing choice.
Black II, supra, 41 Cal.4th 799, also explained that the imperatives of Cunningham, supra, 127 S.Ct. 856, and its antecedents are satisfied if one aggravating factor is established in accordance with the rules of those cases. At that point, the defendant is eligible for the upper term, and further judicial finding or balancing of factors in deciding whether to impose it is constitutionally permissible. (Black II, supra, 41 Cal.4th at pp. 813, 815-816.) The court’s present recidivism finding, concerning Taylor’s probationary status, therefore qualified Taylor for an upper term sentence, and the court’s choice of that sentence did not run afoul of Cunningham.
Taylor challenges several components of the foregoing analysis, but his arguments are unavailing. First, he asserts that the jury trial exception should be strictly construed, to apply only to the fact of a prior conviction and not to other recidivism-related factors arising out of it. This approach runs contrary to the teachings of the California Supreme Court (Black II, supra, 41 Cal.4th at p.819; People v. McGee (2006) 38 Cal.4th 682), and is not independently compelling. Taylor further contends that as a matter of due process the standard of proof of a prior conviction should be beyond a reasonable doubt, even if the court may make the finding. But our Supreme Court has rejected the same argument. (Black II, supra, 41 Cal.4th at p. 820, fn. 9.) Third, Taylor contends that Black II’s ruling that a single, constitutionally established aggravating factor is sufficient to qualify a defendant for upper term sentencing is erroneous, for several reasons. Taylor acknowledges, however, that this court is bound to follow the Supreme Court’s decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and he expressly submits this contention for the purpose of “exhausting state remedies.”
On the same basis, Taylor articulates other challenges to Black II, some of them repetitive of claims dealt with above. Taylor similarly challenges the correctness of elements of Sandoval, supra, 41 Cal.4th 825, concerning harmless error and resentencing. We do not further address these arguments, because Taylor recognizes that we cannot depart from the Supreme Court’s rulings, and also because the Sandoval points do not apply to Taylor’s situation, as we have resolved it.
For the foregoing reasons, the judgment with respect to appellant Taylor will again be affirmed in full.
We turn to King’s appeal. As stated, the trial court imposed the upper term on King after finding three aggravating circumstances: the crime involved great violence, great bodily harm, etc.; the victim was particularly vulnerable; and the crime’s planning, sophistication, etc. indicated premeditation. King argues that because these factors were not found by the jury, his enhanced term was imposed in violation of Cunningham and its antecedents. We agree. We cannot embrace respondent’s argument that King’s guilty verdicts for felonious assault necessarily included findings that the crimes involved great violence and great bodily harm, aspects of the trial court’s first aggravating factor. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person § 41, p. 664; see also Sandoval, supra, 41 Cal.4th at pp. 842-843 [indicating that jury must find a high degree of cruelty, callousness, or viciousness by the defendant, in addition to great violence].)
Respondent also argues that the Cunningham error was harmless. “The denial of the right to jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 . . . .” (Sandoval, supra, 41 Cal.4th at p. 838.) Cunningham error is harmless if we 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.) The Supreme Court has cautioned, however, that we make this assessment conscious that the defendant may not have had reason or opportunity to challenge an aggravating factor that was not at issue at trial. (Ibid.)
Respondent contends that, beyond a reasonable doubt, the jury would have found all three of the court’s aggravating factors, also beyond a reasonable doubt. We cannot agree. First, the trial court acquitted appellant of a great bodily injury allegation, and his overall behavior, certainly while violent, was the less egregious of the two appellants’. Even assuming the jury would have found that the robbery did involve great violence, great bodily injury, or its threat, it is not clear beyond a reasonable doubt that they also would have found “‘a high degree of cruelty, viciousness, or callousness’ [citation] on defendant’s part.” (Sandoval, supra, 41 Cal.4th at p. 843.) As cited, Sandoval indicates that this element also is required.
Similarly uncertain is the factor of the victim having been particularly vulnerable. Respondent claims this factor is supported by the evidence that Bowen was lured to an apartment complex, whereupon appellants set on him with weapons. These facts do not establish harmless error. Appellants’ use of weapons was an aspect of the crime. While the victim was taken several blocks from his friend’s house, and – unarmed – was outnumbered two-to-one, we cannot say, beyond a reasonable doubt, that the jury unquestionably would have found the “vulnerability” factor.
The matter is closer with respect to the final factor, that the planning, sophistication, or professionalism with which the crime was carried out, or other facts, indicated premeditation. The evidence does indicate, circumstantially, that a forcible taking from Bowen was planned, in the sense of premeditated. King did not bring the pink slip with him to the car sale meeting and, having taken the victim from his friend’s house to another location, said he was waiting for someone to bring the speaker box even after Bowen had said he didn’t want it. Nevertheless, we cannot say beyond a reasonable doubt the jury would have concluded beyond a reasonable doubt that the offense had been planned in advance, rather than having arisen on the spur of the moment.
We therefore cannot find that the Cunningham error as to King was harmless. The matter must therefore be remanded for resentencing with regard to King. (Sandoval, supra, 41 Cal.4th at pp. 843-852, sets forth the procedures by which that resentencing should proceed.
This conclusion pretermits any need to address King’s arguments that a different harmless error test from that articulated in Sandoval, supra, 41 Cal.4th 825, should apply – arguments that, as an intermediate court, we could not adopt.
King argues, however, that his remission to these procedures – instead of a remand with directions to impose a midterm sentence – would violate numerous constitutional rights. These arguments are unavailing. First, Sandoval, supra, 41 Cal.4th at pages 853-857, rejected the claim that the resentencing procedures it prescribed would violate ex post facto and related due process restrictions. We find no reason to reconsider that conclusion, assuming we could. King’s further argument that his resentencing as prescribed would constitute double jeopardy also must fail. It is based on the proposition that robbery with aggravating sentencing factors is a greater offense to the lesser offense of robbery, so that King, having been convicted of the lesser offense, may not now be exposed to the greater. But the proposition that sentence-aggravating factors create a separate, greater offense lacks legal basis. Finally, King adopts from Taylor an argument that Sandoval engenders an equal protection violation, because, without rational basis, it subjects defendants resentenced after it to a different and less favorable sentencing process than those resentenced before the decision. But any legal revision may have similar consequences, and some of the rational bases for the prospective difference in sentencing procedures appear in Sandoval, 41 Cal.4th at pages 848-852.
DISPOSITION
The judgment with respect to appellant Taylor is affirmed. With respect to appellant King, the judgment of guilt is affirmed, and the matter is remanded for resentencing.
We concur: RUBIN, J. EGERTON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section six of the California Constitution.