Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F6152
SCOTLAND, P. J.
About one week after Antoinette Gutierrez ended her abusive and tumultuous relationship with defendant Kenneth Wayne Williams, defendant lit himself and Gutierrez on fire.
Contrary to defendant’s wishes, Gutierrez had moved into a motel room with another man. The day before the fire, defendant confronted Gutierrez at the motel room, where they argued about the breakup and he eventually held a knife to her throat and hit her with a can of fruit. The next day, defendant returned with a can of gasoline. After successfully attempting to convince her to return to him, he closed and locked the door, explaining: “Since you don’t love me no more, nobody is going to love us.” He then poured gasoline on himself and the bed and explained: “I’m going to burn my apologies.” With that, defendant ignited himself and grabbed onto Gutierrez, causing serious burns to her hands, arms, and face. Gutierrez took refuge in the shower after her attempt to leave the room was blocked by the burning defendant. Defendant then leaped through the room’s plate glass window, landing in the parking lot, where bystanders were able to smother the flames with a curtain. Defendant suffered severe burns over 50 percent of his body.
Defendant was charged with arson of an inhabited structure, arson of an inhabited structure causing great bodily injury, and attempted murder in the commission of which he inflicted great bodily injury. After initially pleading not guilty of all counts, he entered a negotiated plea of no contest to attempted murder and admitted the bodily injury enhancement, with the understanding that the other charges would be dismissed.
Defendant later withdraw his plea and entered a plea of not guilty by reason of insanity (NGI). The trial court reinstated all the charges and appointed two psychologists to evaluate defendant.
Ultimately, defendant withdrew his NGI plea and entered negotiated pleas of guilty to attempted murder and arson of an inhabited structure. In exchange, the other charges were dismissed and defendant was promised he would be committed to state prison for a term of no more than 10 years and eight months.
The trial court sentenced defendant to nine years in prison (the upper term of nine years for attempted murder and a concurrent upper term of eight years for arson) and imposed other orders.
On appeal, defendant contends “imposition of upper terms . . . violated his federal constitutional rights to a jury trial, proof beyond a reasonable doubt, and due process.” We disagree and shall affirm the judgment.
DISCUSSION
In defendant’s view, imposing the upper terms contravened the United State Supreme Court’s decisions in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (hereafter Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely). He acknowledges, however, that we are bound by the California Supreme Court’s decisions in People v. Sandoval (2007) 41 Cal.4th 825 (hereafter Sandoval) and People v. Black (2007) 41 Cal.4th 799 (hereafter Black II). Thus, he raises the issue to preserve it for federal review.
As we will explain briefly, defendant’s claim of error fails.
Defendant was sentenced on April 15, 2008, after California’s Legislature amended Penal Code section 1170 to give trial courts broad discretion to impose a lower, middle, or upper term by simply stating reasons for imposing the selected term. (Further section references are to the Penal Code.) As a result of the amendment, the upper term, not the middle term, is the statutory maximum that may be imposed without additional factfinding. (Sandoval, supra, 41 Cal.4th at pp. 850-851.)
Here, the trial court imposed the upper term for the following reasons: “I do think the aggravated term is appropriate because of the great bodily harm that was caused. Despite what was said here today, it took a bit of planning to pull this off. And plus, for no other reason, although he only has one prior felony conviction, he does have numerous prior convictions. He was on probation on a misdemeanor when they occurred. And he does have one act of violence -- two, a [battery] and [threatening with a weapon].”
Imposing the upper term for these 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’s claim that his sentencing under the amended version of section 1170 amounted to an unconstitutional ex post facto application of law is also foreclosed by the California Supreme Court’s decision in Sandoval, which explained: “A change in substantive criminal law is retroactive if applied to cases in which the crime occurred before its enactment, but a change in procedural law is not retroactive when applied to proceedings that take place after its enactment.” (Sandoval, supra, 41 Cal.4th at p. 845; see also Tapia v. Superior Court (1991) 53 Cal.3d 282, 289 [“a law governing the conduct of trials is being applied ‘prospectively’ when it is applied to a trial occurring after the law's effective date, regardless of when the underlying crime was committed”].) While Sandoval did not specifically hold that amended section 1170, by its terms, could be applied to a defendant whose crimes were committed prior to the amendment, the court held that “it is appropriate for resentencing in such cases to proceed under the procedure proposed by the Attorney General and adopted independently by the Legislature. [Citations.]” (Sandoval, supra, 41 Cal.4th at p. 846.)
It would make no sense to conclude a defendant could not be sentenced in the first instance pursuant to amended section 1170 where his crimes were committed prior to the amendment, but that, on remand for resentencing, the same defendant could be sentenced pursuant to amended section 1170. Whether imposing sentence in the first instance or on remand for resentencing, applying amended section 1170’s sentencing procedure to crimes committed before the amendment does not amount to an unconstitutional ex post facto application of the law. (See Sandoval, supra, 41 Cal.4th at p. 846.)
In any event, the trial court’s choice of the upper term sentence did not violate defendant’s Sixth Amendment rights as interpreted in Blakely and Cunningham.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), the United States Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) The statutory maximum is the maximum sentence a court may impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; therefore, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
Cunningham held that California’s determinate sentencing law (DSL), as it existed prior to the Legislature’s amendment to section 1170, violated the Sixth and Fourteenth Amendments by “authoriz[ing] the judge, not the jury, to find the facts permitting an upper term sentence.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876].) This was so because, as Cunningham explained, “the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Id. at p. ___ [166 L.Ed.2d at p. 873.)
Defendant concedes that California’s Supreme Court held in Black II, supra, 41 Cal.4th at page 813, that “[u]nder California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” Consequently, “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 p. 816.) This “prior conviction” exception encompasses “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, supra, 41 Cal.4th at pp. 818-820.)
In this case, the trial court imposed the upper term because of defendant’s “numerous prior convictions,” including one felony conviction and two violent misdemeanor convictions. The fact the court also stated other reasons for imposing the upper term is immaterial. As defendant himself admits in his opening brief, “a single factor in aggravation can be sufficient to justify the imposition of the upper term. [citing People v. Osband, supra, 13 Cal.4th at p. 728.]”
Imposition of the upper terms did not violate defendant’s Sixth Amendment rights.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, J., DAVIS, J.