Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct. No. RIF120263 James B. Jennings, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
Gregory S. Cilli, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Meagan J. Beale, Deputy Attorney General, for Plaintiff and Respondent.
OPINION ON REMAND
RICHLI, J.
A jury found defendant guilty of theft or embezzlement from an elder by a caretaker in violation of Penal Code section 368, subdivision (e)., Defendant was sentenced to an upper term of four years in state prison. On appeal, defendant contends (1) his due process right was violated when the trial court refused to allow him to present witnesses at the sentencing hearing; (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term; and (3) the abstract of judgment must be corrected to reflect the correct amount of fines imposed by the trial court.
All future statutory references are to the Penal Code unless otherwise stated.
The jury found defendant not guilty of theft or embezzlement from an elder by a noncaretaker (§ 368, subd. (d)) as alleged in count 2.
Initially, we found that defendant’s upper term sentence ran afoul of Cunningham; we vacated defendant’s sentence and remanded the matter to the trial court for further proceedings. The California Supreme Court thereafter issued opinions in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) and People v. Black (2007) 41 Cal.4th 799 (Black II) and directed this court to vacate our June 13, 2007, opinion and to reconsider defendant’s appeal in light of Sandoval and Black II. Following an examination of those cases, we agree, as we must, that defendant’s upper term sentence violates Cunningham; however, we find that the error was harmless beyond a reasonable doubt. In addition, though we find the court erred in refusing to allow defendant to present witnesses at the sentencing hearing, that error was harmless as well. Finally, we agree with the parties that the abstract of judgment must be amended to reflect the fines imposed.
I
FACTUAL BACKGROUND
From November 2002 through August 2003, defendant took advantage of and stole money from his elderly neighbor, Virginia Richardson, while purporting to take care of her. Richardson was an 80-year-old single woman living in Riverside with no near relatives.
Richardson’s nearest relative was her half sister, Marilyn Fortenberry, who lived in Texas. Richardson did not testify at trial; however, the videotape of Richardson’s preliminary hearing testimony was admitted into evidence.
Though defendant was Richardson’s neighbor for about 20 years and friendly with her, they were not close, and Richardson did not consider him to be her son. Defendant was unemployed and had been for a couple of years. He claimed he supported himself by taking a second mortgage on his house and stated he was “employed” by Richardson from November 2002 until September 12, 2003. Defendant alleged that he and Richardson entered into an agreement in November 2002 whereby defendant would care for Richardson by providing food, cleaning her house, maintaining her yard, performing home repairs, and taking care of her dog; in exchange, Richardson would pay defendant’s living expenses of $1,500 or $2,000 per month. In addition, defendant took over Richardson’s finances by gaining access to Richardson’s bank accounts, from which he would pay Richardson’s bills as well as his own over the internet. During this time, defendant withdrew over $13,000 from Richardson’s bank accounts and charged $500 per month on her credit card accounts. He even continued to withdraw money from her bank account after Richardson fell and broke her hip in August 2003, resulting in her being admitted into the hospital.
Though Richardson occasionally gave defendant money to buy groceries for her, she did not agree to pay defendant’s bills, hire him as help, or give him control of her bank accounts; she had told a neighbor numerous times that she wished defendant “would leave [her] alone.”
When Richardson’s half sister made a surprise visit in February 2003, she found the house to be dirty, although previously Richardson had kept a meticulously clean home. There were dead rats in the garage and one in the kitchen and dog and human feces throughout the house. Richardson’s clothes were soiled, and Richardson’s garden -- once a great source of pride -- was a shambles. Richardson herself was dirty, with terrible hygiene and mental deterioration. Defendant told Fortenberry during this visit that he was Richardson’s caretaker. Defendant called Richardson “mom,” which Richardson did not like.
Around this time period, defendant also took steps to acquire ownership and control of most of Richardson’s property. On November 14, 2002, defendant arranged to be named trustee and sole beneficiary of Richardson’s living trust and executor of her will, instead of Fortenberry, the original trustee, sole beneficiary, and executrix. Additionally, defendant possessed an accidental death insurance policy on Richardson’s life, secured a power of attorney to deal with Richardson’s affairs, and secured a quitclaim deed to Richardson’s property. The quitclaim deed was notarized by a Steve Goryan. Goryan had his tuition for a notary public class paid by defendant in May 2002. On November 19, 2002, a check from Richardson’s bank account with her signature was made payable to Goryan in the amount of $1,500.
Although Richardson’s signature had appeared on the above documents, she denied giving or assigning control over any of her property to defendant. She also denied changing her will to benefit defendant or lending him $3,500. Richardson had told Fortenberry that she did not give any property to defendant.
On August 17, 2003, following her fall, Richardson was discharged to a skilled nursing facility. At that time, defendant told the admissions coordinator that he was Richardson’s son and that Richardson did not have the capacity or understanding to make decisions for herself. Defendant also said that Richardson did not want any visitors, especially her sister Fortenberry, and presented a power of attorney as well as a letter dated April 7, 2000, with Richardson’s signature indicating that she did not want any visitors, particularly Fortenberry. Defendant also signed a document directing the facility not to resuscitate Richardson if she fell ill and directing the facility to have her cremated rather than buried if she died. Defendant signed this document as “Virginia Richardson,” by defendant, her son and attorney in fact.
When the nursing facility admissions coordinator brought up the cost of care, defendant refused to pay. The coordinator suggested that defendant apply for Medi-Cal benefits, but defendant said that Richardson had “too much money.” Defendant then stated that he would transfer her money from her account into his to attempt to qualify for Medi-Cal benefits. Defendant became upset when the coordinator told him that if payment was not received, the public guardian’s office would be asked to take control of her estate.
The coordinator later learned that Richardson in fact wanted visitors, wanted to be resuscitated, and wanted to be buried rather than cremated. Richardson became upset when told by the coordinator that defendant had requested cremation and informed the coordinator that she had two family plots, one of which was for her. Richardson appeared shocked when she was told that her “son” had admitted her, had a power of attorney, and represented that she did not have the capacity to make her own decisions. After speaking to Richardson, the coordinator called the police, which led to an investigation of defendant.
Pursuant to the investigation, in September 2003, the police executed a search warrant upon defendant’s home. A number of documents relating to Richardson were found in defendant’s home, including bank documents, credit cards, a checkbook in Richardson’s name, a living trust with power of attorney and directives, letters, and a rubber stamp of Richardson’s signature. Defendant said he had the stamp to facilitate signing checks and other documents. The police also discovered $6,500 in cash; a copy of a letter dated February 5, 2003, in which defendant asked a doctor to find Richardson incompetent; a memorandum dated April 14, 2003, purportedly with Richardson’s signature, in which she agreed to lend defendant money; and an insurance policy on Richardson’s life.
The police also noted the filthy condition of Richardson’s home. The lawn was dead, the trees were not trimmed, and there was overgrowth in the yard. Inside, the home was “[v]ery, very dirty.” The carpet had been cut away in spots, there were stains on the carpet around the bed, the dog had free rein of the house, and the home smelled of feces.
In an interview with a police investigator, defendant admitted that he had placed Richardson into a facility and that his goal was to have her doctor diagnose her with a mental handicap or disease. He also admitted that he would receive Richardson’s estate pursuant to her trust when she died. He further stated that although he knew Richardson wanted to be buried in one of her family plots, he intended to have her cremated because “he doesn’t believe in spending money in death . . . .” Defendant was eventually arrested in November 2004.
II
DISCUSSION
A. Cunningham/Blakely/Apprendi
At sentencing, the court indicated that it had read and considered the probation report and a typed statement from defendant. After the court heard from the prosecutor and Richardson’s half sister, it denied probation and sentenced defendant to the upper term of four years. The judge noted defendant’s despicable conduct, stating, “[I]t is one of the coldest, most calculated, cruelest series of acts I’ve ever seen.” The judge also found defendant “the least probably successful candidate for probation” he had seen based on defendant’s “calculating, cruel and daily acts of this man in this state of mind.” The judge further noted that “this kind of an act calls for the most severe punishment in my opinion, that the sentencing range available to the Court is fully inadequate, and if I could sentence [defendant] to more, I would sentence [him] to more.” The court found the case to be “completely aggravated,” citing two factors in aggravation: (1) defendant’s lack of remorse, and (2) defendant’s callous and depraved mind. The court found the fact that defendant had no prior record to be a factor in mitigation.
Defendant denied his conduct, excused himself, and claimed to be a victim.
Defendant contends the imposition of the aggravated term without jury findings on circumstances in aggravation violated the federal constitutional guarantees of jury trial and proof beyond a reasonable doubt pursuant to Cunningham, supra, 127 S.Ct. 856, Blakely, supra,542 U.S. 296, and Apprendi, supra,530 U.S. 466.
In Cunningham, the United States Supreme Court overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held that the middle term in California’s determinate sentencing law (DSL) was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, supra,127 S.Ct. at p. 868.) The court noted that California’s DSL, by placing sentence-elevating factfinding within the trial judge’s province, violates a criminal defendant’s right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, at p. 860.) Cunningham explained that because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the DSL violates the bright-line rule in Apprendi and that any fact, other than the fact of a prior conviction, 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, at p. 868.) Quoting Blakely, supra, 542 U.S. at pages 303 and 304 for the proposition that “‘the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,’” the Cunningham court concluded that “[i]n accord with Blakely, therefore, the middle term prescribed in California statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, at p. 868.)
Our Supreme Court recently decided Black II, supra, 41 Cal.4th 799 following the United States Supreme Court’s remand of Black I for reconsideration in light of Cunningham. In Black II, the court recognized that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (Black II, at p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728 and § 1170, subd. (b).) Accordingly, the court in Black II held that a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, at p. 812.) “[A]ny additional factfinding 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.” (Ibid.)
An aggravating circumstance is one that “makes the offense ‘distinctively worse than the ordinary.’ [Citations.]” (Black II, supra, 41 Cal.4th at p. 817.) Accordingly, aggravating circumstances include not only those listed in rule 4.421, but also “[a]ny other facts statutorily declared to be circumstances in aggravation,” (rule 4.421(c)) and any other facts “reasonably related to the decision being made” (rule 4.408(a)).
The court in Black II explained, “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows 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 II, supra, 41 Cal.4th at pp. 815-816, italics added.)
Here, there are no factors in aggravation that satisfy the Sixth Amendment requirements. As aggravating factors, the court found defendant lacked remorse and had a callous and depraved mind. However, these aggravating factors were not established by the jury’s verdict or admitted by defendant, and defendant has no record of prior convictions. Hence, defendant’s conviction for theft or embezzlement from an elder by a caretaker limited the permissible sentence on the offense to the middle term of three years. (See Cunningham, supra, 127 S.Ct. at p. 860.) It follows that the trial court’s imposition of the upper term of four years violated defendant’s Sixth Amendment right to a jury trial. We next consider whether this federal constitutional error is harmless beyond a reasonable doubt.
In Sandoval, supra, 41 Cal.4th at p. 838, our Supreme Court recognized that the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. (See also Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2553, 165 L.Ed.2d 466].) The question the reviewing court must determine is whether the jury would have authorized the upper term sentence if the question of the existence of an aggravating circumstance or circumstances would have been submitted to them. “[I]f a reviewing court concludes, 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, the Sixth Amendment error properly may be found harmless.” (Sandoval, at p. 839.)
In this case it is undisputed that the victim of the theft or embezzlement was 80 years old, verging on dementia, had no relatives in California, and had purportedly relied on defendant to take care of her house, yard, and dog and buy her groceries. However, from November 2002 through August 2003, defendant took advantage of and stole large sums of money from the victim while claiming to be her son. He also took steps to acquire ownership and control of most of the victim’s property. He arranged for himself to be named trustee and sole beneficiary of the victim’s living trust and executor of her will; he had possessed an accidental death insurance policy on the victim’s life; he secured a power of attorney to deal with the victim’s affairs; and he secured a quitclaim deed to the victim’s home. Unlike other elders over 65 years of age, there was no question the victim was particularly vulnerable.
Moreover, without a doubt, the jury heard evidence of defendant’s callous and depraved mind as well as his sophistication in committing the crime. When the victim was placed in a nursing facility, defendant fraudulently stated he was her son; signed a “Do Not Resuscitate” order against the victim’s express wishes; told staff not to permit anyone else to visit her, especially the victim’s only relative; and directed she be cremated if she died, again contrary to the victim’s wishes. When the police searched defendant’s home, they found several documents relating to the victim, including bank documents, credit cards, a checkbook in the victim’s name, a living trust with power of attorney and directives, letters, and a rubber stamp of the victim’s signature. The police also discovered $6,500 in cash, a copy of a letter in which defendant asked a doctor to find the victim incompetent, and an insurance policy on the victim’s life.
We are persuaded, beyond a reasonable doubt, that a jury presented with the issue would have found, also beyond a reasonable doubt, that the victim was particularly vulnerable, that defendant had a callous and depraved mind, or that the manner in which defendant carried out the crime indicated sophistication or professionalism, any one of which findings in turn warrants the upper term sentence the trial court imposed on defendant’s felony theft or embezzlement from an elder by a caretaker conviction.
Sandoval involved aggravating factors, including some “relat[ed] to the defendant’s state of mind,” which were hotly contested at trial or not supported beyond a reasonable doubt by the evidence in the record. (Sandoval, supra, 41 Cal.4th at p. 841.) Here, however, the aggravating factors were part and parcel of the jury’s determination of guilt. 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.) Therefore, the error was harmless beyond a reasonable doubt. (Ibid.)
B. Trial Court’s Refusal to Allow Defendant to Present Witnesses at the Sentencing Hearing
As noted above, at sentencing, the court indicated that it had read and considered the probation report and a typed statement from defendant. When the court asked if defendant had anything further to offer, defense counsel stated that defendant had brought two witnesses to speak on defendant’s behalf. The court refused to hear these witnesses and stated, “No. That should have gone through the Probation Department. You can tell me what they’re going to say though. Except for victims, under the Code, I am precluded from hearing evidence at a sentencing hearing. Everything has to go through the Probation Department.”
Defense counsel disagreed with the court’s position but followed the court’s suggestion and proffered the two witness’s testimony in support of defendant’s request for probation.
Defendant claims the court erred in refusing to allow his witnesses to make a statement at the sentencing hearing and argues remand is required even if we find no Sixth Amendment error.
Though we agree the court abused its discretion when it refused to allow his two witnesses to speak on his behalf at the sentencing hearing pursuant to section 1204 (see also People v. Mitchell (1988) 199 Cal.App.3d 300, 313; People v. Valdivia (1960) 182 Cal.App.2d 145, 148 [defendant has a right to present evidence in mitigation of his punishment at a sentencing hearing or to counteract or correct a probation report]; § 1170, subd. (b); Cal. Rules of Court, rule 4.414(b)(3) & (4)), we find the error to be harmless. Courts have consistently held that a harmless error standard for procedural error at sentencing should apply and that remand for resentencing is unnecessary unless “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Edwards (1993) 13 Cal.App.4th 75, 79; see also People v. Price (1991) 1 Cal.4th 324, 492; People v. Avalos (1984) 37 Cal.3d 216, 233.)
Here, for the reasons stated above and based on the court’s harsh comments concerning defendant’s despicable conduct, we cannot say defendant would have received a more favorable result in the absence of error. Moreover, defense counsel proffered defendant’s two witness’s testimony in support of defendant’s request for probation, and therefore the court heard the essence of his two witness’s statements and still found defendant to be ineligible for probation and deserving of an aggravated sentence. Accordingly, the error was harmless and remand is unnecessary under the circumstances of this case.
Even if we were to find the error to be of a constitutional magnitude, we would conclude the error to be harmless beyond a reasonable doubt for the reasons set forth in II.A., ante.
C. Correction of Abstract of Judgment
At sentencing, the court imposed a fine of $1,000 pursuant to section 368, subdivision (e), plus a $200 restitution fine pursuant to section 1202.4, and a parole revocation fine of $200 pursuant to section 1202.45. However, the court’s minute order and abstract of judgment indicate that the amount of the fine under section 1202.4, subdivision (b) was $1,000. Subsequently, because the amount of the section 1202.45 fine differed from that of the section 1202.4 fine, the Division of Adult Operations at the California Correctional Center requested by letter that the court increase the section 1202.4 fine, as required by section 1202.45. On May 10, 2006, the court granted that request, increased the section 1202.4 fine, and directed that a certified copy of the minute order of the increase be furnished to the correctional center.
Defendant requests that we vacate the trial court’s May 10, 2006, order and amend the abstract of judgment and the minute order to resolve the discrepancy between the court’s oral pronouncements at sentencing and the court minutes and abstract of judgment.
“ . . . ‘Rendition of judgment is an oral pronouncement.’” (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entering the judgment in the minutes is a clerical function, as is the preparation of the abstract of judgment. Therefore, when the oral pronouncement of judgment is in conflict with the minutes and/or the abstract of judgment, the oral pronouncement controls. (Ibid.) An appellate court has the authority to order correction of clerical errors on request of either party or on its own motion. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.) We will therefore order the clerk of the superior court to correct the minutes and the abstract of judgment to reflect correctly the court’s findings on the fines. (Id. at p. 188.)
III
DISPOSITION
The clerk of the superior court is directed to correct the minutes and abstract of judgment to reflect the restitution and parole revocation fines of $200 each. The clerk of the superior court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections (§§ 1213, 1216) and to the parties. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., McKINSTER, J.