Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. Nos. BA227516 & BA237166, Samuel Mayerson, Judge. (Retired Judge of the Los Angeles Mun. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with modifications.
Nancy L. Tetreault, 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, Senior Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Angela Fawn Wallace, appeals after she was resentenced in two cases following a partial reversal on appeal. Defendant’s argues that she was improperly sentenced to the upper term in case Nos. BA227516 and BA237166 and the sentence should not have been ordered to be served consecutively. The Attorney General argues that the trial court should have imposed court security fees as to each count. We find the sentencing issues moot and affirm with modifications.
In her opening brief, defendant argued that the trial court had improperly refused to award her presentence credits. However, in her reply brief, defendant conceded that the presentence credits had been awarded for case Nos. BA227516 and BA237166 at her sentencing in case No. BA307817.
II. BACKGROUND
A. Case No. BA227516
In case No. BA227516, defendant was convicted after a jury trial of: one count of grand theft (Pen. Code, § 487, subd. (a)); one count of forgery for signing another person’s name to a power of attorney (§ 470, subd. (a)); one count of forgery for “forg[ing] the seal and handwriting of another” (§ 470, subd. (b)); one count of forgery for using a “forged and counterfeited” power of attorney (§ 470, subd. (d)); one count of perjury (§ 118, subd. (a)); and one count of check forgery. (§ 470, subd. (a).) The jury found a section 12022.6 subdivision (a)(2) excessive taking special allegation to be true. Defendant was sentenced on April 2, 2003. Defendant appealed the judgment in case No. BA227516.
All further statutory references are to the Penal Code unless otherwise indicated.
On May 11, 2005, Division Seven of the Court of Appeal for this appellate district issued its opinion reversing the judgment in part and remanding for resentencing in case No. BA227516. (People v. Wallace (May 11, 2005, B164706) [nonpub. opn.].) The disposition of the opinion filed by our Division Seven colleagues stated: “The judgment as to Angela Wallace is reversed as to counts two and three and affirmed in all other respects. The matter is remanded for resentencing as to Wallace.” (Ibid.) As a result, in case No. BA227516, defendant stands convicted of: a single count of grand theft with a finding that more than $150,000 was taken; two forgery counts; and one perjury count.
B. Case No. BA237166
On October 2, 2003, in case No. BA237166, defendant pled guilty to charges of conspiracy to commit false personation and perjury subordination. (§§ 127, 182, subd. (a)(1), 529.) Defendant was sentenced on December 19, 2003. On November 19, 2004, we issued our opinion in case No. BA237166. (People v. Wallace (Nov. 19, 2004, B173393) [nonpub. opn.].) We affirmed the judgment of conviction, based on her guilty pleas, but reversed the sentence to allow the trial court to compute an aggregate term as a result of the convictions in case Nos. BA227516 and BA237166. Our disposition stated: “The sentence is reversed. The matter is remanded to allow the trial court to impose an aggregate term in case Nos. BA237166 and BA227516 and to calculate presentence credits as well as credits for actual days spent in prison. The clerk of the superior court is directed to prepare and deliver to the Department of Corrections an amended abstract of judgment which accurately sets forth the aggregate sentence and the custody credits. The judgment is affirmed in all other respects.” (Ibid.)
C. Post-appeal Sentencing
After the remittiturs issued, defendant was resentenced on April 15, 2005. The principal term was the grand theft count in case No. BA227516. The three-year upper term was imposed along with the two-year section 12022.6, subdivision (a) enhancement. The following subordinate terms, all of which were fixed at one year in duration, were: the perjury count in case No. BA227516; the false personation conspiracy count in case No. BA237166; and the perjury subornation count in case No. BA237166. The sentence as to the remaining counts, all arising in case No. BA227516, were stayed pursuant to section 654, subdivision (a). Hence, defendant was sentenced to prison for eight years.
On May 15, 2006, we issued our opinion in superior court case No. BA237166. (People v. Wallace (May 15, 2006, B183129) [nonpub. opn.].) We reversed the one-year sentence previously imposed as to count 3 and imposed the term of eight months, thereby making defendant’s aggregate term seven years, eight months. We further ordered, “Upon issuance of the remittitur, the clerk of the superior court is directed to prepare and deliver to the Department of Corrections and Rehabilitation an amended abstract of judgment.” (Ibid.) We affirmed the judgment in all other respects, and specifically rejected defendant’s argument that she was denied her Sixth Amendment right to a jury trial by the imposition of consecutive sentences on unspecified facts not found to be true by a jury. On October 5, 2006, defendant was resentenced to an aggregate term of seven years, eight months for the eight counts.
D. Case No. BA307817
On August 20, 2007, defendant was sentenced in case No. BA307817 following her conviction for grand theft (§ 487, subd. (a)) and forgery. (§ 115, subd. (a).) The trial court consolidated cases BA227516, BA237166, and BA307817 for sentencing and awarded all presentence credits due defendant.
III. DISCUSSION
A. Mootness
Preliminarily, issues raised by defendant regarding sentencing were rendered moot by her resentencing in Los Angeles Superior Court case No. BA307817. Moot appeals will generally be dismissed. (See, e.g. Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; Vernon v. State (2004) 116 Cal.App.4th 114, 120-121; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214; Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 921.) However, there are exceptions that grant the appellate court the discretion to decide a case which, although technically moot, poses an issue of broad public interest that is likely to recur. (State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 61; In re William M. (1970) 3 Cal.3d 16, 23; see Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8; People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1242, fn. 1.) In this case, defendant will likely raise the same sentencing issues in her appeal in case No. BA307817 as she indicates in her letter brief on the issue of mootness. We therefore, address the issues below.
B. Imposition of Upper Term
Citing to Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 860], defendant again argues that the trial court improperly imposed the upper term as to the grand theft of personal property in case No. BA227516. As noted previously, on May 11, 2005, Division Seven of the Court of Appeal for this appellate district remanded case No. BA227516 for resentencing. (People v. Wallace, supra.) In its opinion, our Division Seven colleagues addressed the issue of the trial court’s imposition of the high term as follows: “In sentencing [defendant], the trial court found four factors in aggravation: (1) the large sum of money taken ($294,962.35), (2) [defendant’s] abuse of a position of trust as a lawyer, (3) the vulnerability of the grieving victims and (4) the pattern of deceit shown by her career of malpractice as a lawyer. In mitigation, the court noted that this was her first felony conviction. Because the aggravating factors outweighed the mitigating factors, [defendant] was sentenced to the upper term of three years on the grand theft count. [¶] The large sum of money taken was already used to enhance [defendant’s] sentence on the grand theft count so dual use of this factor was improper. Similarly, [defendant’s] abuse of her position of trust was already before the jury as an element of embezzlement as a means of accomplishing the grand theft so dual use of this factor was improper as well. We are satisfied, however, that it is beyond a reasonable doubt that a jury would have reached any conclusion other than the trial court as to the vulnerability of the grieving victims . . . . Moreover, as [defendant] concedes, by its terms, her plea of nolo contendere to stipulated facts and conclusions of law on multiple disciplinary charges brought by the State Bar was an admission of culpability. Because she admitted these facts and charges, the trial court’s consideration of the pattern of deceit demonstrated by [defendant’s] career of malpractice as a lawyer was proper under Blakely in the absence of any jury findings. (Blakely v. Washington [(2004) 542 U.S. 296], original italics, further emphasis added [‘the statutory maximum . . . is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant ’].) [¶] Nevertheless, there was also one mitigating factor. Although we do not find the upper term to be precluded here (see People v. Cruz (1995) 38 Cal.App.4th 427, 433 [a single aggravating factor is sufficient to support imposition of the upper term], on this record, we are unable to determine whether the improper factors were determinative for the trial court or that the elimination of the improper factors would have made a difference in the trial court sentencing decision. (People v. Avalos [(1984)] 37 Cal.3d [216,] 233.) Accordingly, remand is appropriate to allow the trial court to resentence [defendant]. ” (Ibid; original italics and emphasis, footnotes omitted.) Defendant was subsequently resentenced to the upper term of 3 years.
Thereafter, the United States Supreme Court issued its opinion in Cunningham v. California, supra, ___ U.S. at page ___ [127 S.Ct. at p. 860], which held the determinate sentence law improperly allowed the trial judge, rather than a jury, to find the facts that are relied upon in imposing the upper term. In Cunningham, the Supreme Court held: “[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.” (Ibid.) Thereafter, the California Supreme Court in People v. Black (2007) 41 Cal.4th 799, 812 the California Supreme Court held: “[A]s 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 [v. New Jersey (2000) 530 U.S. 466, 490] 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.” (Original italics.) In Black, our Supreme Court further held: “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.” (People v. Black, supra, 41 Cal.4th at p. 816.)
In this case, defendant has now accumulated convictions on eight counts in three criminal actions. Most recently, she was convicted of grand theft and forgery in case No. BA307817. At the time she was sentenced in that case, the trial court imposed an aggregate sentence, leaving the high term for the grand theft in case No. BA227516 in place as the principal term. As noted, a section 12022.6, subdivision (a)(2) excessive taking finding was returned by the jury. If there was Cunningham error, it is harmless in light of the fact that she had multiple convictions when ultimately sentenced in the three cases. (Washington v. Recuenco (2006) 548 U.S. ___, ___ [126 S.Ct. 2546, 2553]; Chapman v. California (1967) 386 U.S. 18, 24.)
C. Imposition of Consecutive Terms
Defendant argues the consecutive sentence imposed in case No. BA237166 violated her Sixth Amendment right to a jury determination of the facts supporting such a sentence is also without merit. In People v. Black, supra, 41 Cal.4th at pages 821-823, our Supreme Court held: “Cunningham [v. California, supra, ], however, does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” We are bound by this holding. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
D. Court Security Fees
Following our request for further briefing, the Attorney General argues the trial court should have imposed a $20 section 1465.8, subdivision (a)(1) court security fee as to each of the eight counts related to case Nos. BA227516 and BA237166. (See People v. Alford (2007) 42 Cal.4th 749, ___; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) When defendant was resentenced to an aggregate term on October 5, 2006, the trial court did not impose any court security fees. As a result, eight section 1465.8, subdivision (a)(1) fees must be imposed. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to impose the eight Penal Code section 1465.8, subdivision (a) fines. A corrected abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation by the superior court clerk. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J.