Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF105897, Edward D. Webster, Judge.
Susan K. Keiser for Defendant and Appellant Daniel M. Zarate.
Julie Sullwold Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant Mauricio Garcia Galindo.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendants Daniel M. Zarate and Mauricio Garcia Galindo appeal from resentencing following this court’s remand in an earlier appeal. (No. E034901.) Both defendants contend their sentences to the upper term of six years on count 3 should be reversed under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).) We find that the error was harmless, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
In a previous appeal, this court remanded the matter for resentencing only, and an extensive recitation of the facts is not required to address the single issue presented in the current appeal. In brief, law enforcement officers searched a house and premises in rural Riverside County and arrested defendants on the premises. The officers found numerous items associated with the manufacture of methamphetamine and a functioning large-scale methamphetamine lab.
This court has taken judicial notice of the records in the previous appeal, case No. E034901.
Following trial, the jury convicted defendants of conspiracy to manufacture a controlled substance (Pen. Code, § 182, subd. (a)(1) — count 1), manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a) — count 2), and possessing precursor chemicals with the intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (a) — count 3). The jury also found that the amount of methamphetamine manufactured exceeded 105 gallons of liquid by volume and 44 pounds of solid substance as specially alleged as to counts 1 and 2. (Health & Saf. Code, § 11379.8, subd. (a)(4).)
The trial court sentenced each defendant to 18 years in prison, consisting of the low term of three years for count 1 plus a consecutive 15-year weight enhancement as to that count. The trial court also imposed the low term of three years on count 2 plus 15 years for the weight enhancement and the upper term of six years on count 3 but stayed the sentences for counts 2 and 3 under Penal Code section 654.
In the first appeal, this court reversed the true finding and sentence on the enhancement allegation as to count 1 and remanded for resentencing so the trial court could consider whether to impose the previously stayed enhancement term as to count 2.
On remand, the trial court resentenced each defendant to the low term of three years on count 2 and a consecutive 15-year term for the weight enhancement attached to that count. The trial court imposed the low term of three years on count 1 and the upper term of six years on count 3 but stayed those terms under Penal Code section 654.
III. DISCUSSION
Defendants contend the trial court erred in imposing upper term sentences for count 3 based on facts not found by the jury. The People impliedly concede error but argue the error was harmless beyond a reasonable doubt.
1. Background
At the original sentencing, the trial court relied primarily on the quantity of drugs involved when it imposed the upper term as to count 3. As to Zarate, the trial court stated, “The reason for the aggravated term is the amount of ephedrine and other drugs that were present.” As to Galindo, the trial court stated that “the reason for the aggravated term is that the quantity of drugs involved make[s] this far more serious than the average case.”
In resentencing Galindo following remand, the trial court stated, “Sentencing will be exactly as previously stated except that [c]ount 2, which was stayed, will be the sentence imposed; therefore, the weight enhancement is imposed. And in [c]ount 1 the conspiracy count will be the one that will be stayed pursuant to Penal Code section 654. . . . All previous orders will remain the same.”
In resentencing Zarate, the trial court stated it was imposing the upper term of six years on count 3 based on “the reasons stated.”
2. Analysis
In Cunningham, the United States Supreme Court held that California’s Determinate Sentencing Law (DSL) then in effect violated the Sixth Amendment right to a trial by jury. The court held that “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra,549 U.S. at p. __ [127 S.Ct. at pp. 863-864].) Thus, under the DSL, the middle term was the maximum term that could be imposed on the basis of the jury’s verdict alone. (Id. at p. __ [127 S.Ct. at p. 868].)
Penal Code section 1170 was amended effective March 30, 2007, to eliminate the former requirement that the trial court impose the middle term in the absence of aggravating circumstances. (S.B. 40, Stats. 2007, ch. 3, § 2.) Resentencing in this case took place on January 31, 2006; thus, the statutory amendment did not apply.
In Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the Supreme Court held that exceptions to the requirement of jury determination of aggravating circumstances apply to facts admitted by the defendant and to the fact of prior convictions. In People v. Black (2007) 41 Cal.4th 799 (Black), the court held that “as 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 and its progeny, any 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 a jury trial.” (Black, supra, at p. 812.)
Here, however, neither defendant had any prior convictions (see Apprendi, supra, 530 U.S. at p. 490), and the trial court did not rely on any facts admitted by defendants (see Blakely, supra, 542 U.S. at p. 303). We therefore conclude the trial court erred in imposing the upper term sentence for count 3 based on aggravating factors not found by the jury.
In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the California Supreme Court held that Cunningham error is evaluated under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24. (Sandoval, supra,at pp. 837-839.) Under that standard, 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, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
Galindo argues that the aggravating factor of the large quantity of drugs involved was not a factor listed in the sentencing rules. The Sandoval court observed, “Aggravating circumstances considered by the trial court that are not set out in the rules are not subject to clear standards, and often entail a subjective assessment of the circumstances rather than a straightforward finding of facts.” (Sandoval, supra, 41 Cal.4th at p. 840.) The court further noted that “it is not clear how [such unlisted aggravating factors would be] defined for the jury had [such factors] been submitted to them. (Id. at p. 843) Thus, Galindo argues, this court cannot determine how the jury would have assessed such factors, and the Cunningham error cannot be deemed harmless.
Galindo’s underlying premise is mistaken — California Rules of Court, rule 4.421(a)(10), lists as a circumstance in aggravation that “The crime involved a large quantity of contraband; . . .” Thus, the Sandoval court’s cautionary language concerning unlisted factors does not apply.
Zarate contends that in basing its sentencing decision on “the reasons stated,” the trial court was referring to the reasons it discussed when denying Zarate’s request to dismiss the enhancement, not to reasons the court identified during the initial sentencing on December 5, 2003. Zarate notes that at the resentencing hearing, the trial court did not have the court file in Zarate’s case because the file could not be located. The trial court’s reasons for denying the request to strike the enhancement were that Zarate had willingly participated in manufacturing methamphetamine on a large scale, had received payment for his participation, and created toxic waste. Thus, regardless of whether the trial court was referring to the reasons stated at the 2003 sentencing hearing or to the reasons stated in denying the request to strike the enhancement, the trial court relied, at least in part, on the large quantity of drugs involved in the manufacturing operation. We will focus our analysis on that factor, which we consider dispositive.
A criminalist testified at defendants’ trial that approximately 55 pounds of the precursor chemical ephedrine had been present at the site, and the theoretical yield from that amount of ephedrine was about 41 pounds of methamphetamine. Thus, had it been presented with the specific question, the jury would undoubtedly have found beyond a reasonable doubt that the quantity of contraband involved was very large. (Cal. Rules of Court, rule 4.421(a)(10).) That single factor supports defendants’ upper term sentences for count 3. (Black, supra, 41 Cal.4th at p. 816.) We therefore conclude the Cunningham error was harmless.
IV. DISPOSITION
The judgments are affirmed.
We concur: RAMIREZ P.J., MCKINSTER J.