P. v. Battershell

Filed 9/17/08 P. v. Battershell CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed in part; reversed in part with directions.

Rex Williams, 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, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Defendant was convicted of two counts of aggravated assault (Pen. Code,^[1] 245, subd. (a)(1)), one count of mayhem, a count of burglary, and true findings were made as to great bodily injury enhancements ( 12022.7, subd. (e)) relating to two of the counts. Defendant challenges the trial courts decision to impose the upper term for the unstayed enhancement to the principal term, arguing that it violates the federal constitutional guarantee of a jury trial, where the statute governing terms for enhancements ( 1170.1, subd. (d)), mandates a presumptive middle term, under the rule of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]. Respondent concedes the error. We agree.

BACKGROUND

The victim was in a dating relationship with defendant, Peter James Battershell, for three or four months. Approximately six to eight weeks prior to August 30, 2006, she told defendant she wanted him to stay away. Nevertheless, defendant came over to the residence where the victim lived, unannounced, almost daily. The victim lived with and cared for a senior citizen suffering from dementia, so while she would not admit defendant into the residence when he appeared, the older gentlemen would let him in.

On August 30, 2006, the victim returned to her residence at approximately 9:00 p.m. after gambling at a casino with a female friend, to find defendants golf cart in the driveway. Defendant, who had been sitting outside drinking wine, entered the house when the victim came home, and was told twice by the victim to leave. The defendant laughed in response. Because defendant was following the victim through the house, she walked into the kitchen area toward the door and again told him to leave. He kept laughing and struck her four or five times in the face and chest. The victim grabbed him by the shirt and opened the door to make him leave.

Once the defendant was out the door, the victim locked the door and heard her telephone ring, so she went into her bedroom to answer it. The friend who had accompanied the victim at the casino was calling; the victim related what had just happened. While she was talking on the phone, the victim heard a bang and looked out of her bedroom to see that the defendant had pulled the screen out of the kitchen window and had crawled into the residence through the window. The victim told her friend the defendant was crawling in the window and asked her to call 911, which her friend did.

After he had completed his entry into the residence, defendant began beating the victim, more viciously than before. He struck her on her face, mostly on the left side, hitting her left eye four or five times, as well as hitting her in the chest area. She lost consciousness briefly during the beating. When she regained consciousness, a sheriffs deputy was entering the residence and taking defendant into custody. The deputy noticed the victims face was covered in blood and her left eye was swollen shut. The blood on the right side of the victims face was in the pattern of a sole of a tennis shoe, matching the sole of defendants shoes. The victim noticed a hole in the wall near her which was approximately 12 inches above the level of the floor; the hole and the floor were covered in blood.

As a direct consequence of the attack, the victim suffered facial fractures to the orbits of her eyes; she had lost all vision in her left eye, and still experienced numbness on the left side of her face, including her teeth, by the time of trial.

Defendant was charged and was tried by a jury. He was found guilty of two counts of assault by means likely to produce great bodily injury ( 245, subd. (a)(1)), one count of mayhem ( 203), and first degree burglary with a person present. ( 459.) With respect to one of the aggravated assault counts and the burglary count, the jury made true findings that defendant personally inflicted great bodily injury under circumstances involving domestic violence. ( 12022.7, subd. (e).)

At sentencing, the court selected the burglary count as the principal term. It sentenced defendant to the upper term of six years for the burglary, based on aggravating circumstances relating to defendants prior record, its increasing seriousness and the level of violence. The court imposed the upper term of five years for the bodily injury enhancement due to the level of violence, to run consecutive to the term for the burglary, for a total of 11 years for the burglary count. The court imposed one-third the middle term for one of the assault by means likely to produce great bodily injury counts, a term of one year consecutive to the burglary count, and stayed terms for the balance of the counts and enhancements pursuant to section 654. The total aggregate sentence imposed was 12 years in state prison. Defendant appealed.

DISCUSSION

On appeal, defendant raises a single claim, that the imposition of the upper term for the great bodily injury enhancement violated his federal constitutional right to a jury trial on an aggravating factor. He asserts the factor, determined by the judge, was used to impose a sentence in excess of the statutory maximum term. Respondent concedes the matter must be remanded for resentencing. We agree.

In 1976, the Legislature passed the Determinate Sentencing Law (DSL), which constituted an attempt to provide uniformity in sentences of offenders committing the same offense under similar circumstances. Sections 1170 and 1170.1 were enacted as part of the DSL. At that time, section 1170, subdivision (b), governed sentencing for substantive offenses. The original version provided that the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Former 1170, subd. (b).) The statutory provision governing enhancements punishable by three possible terms is found in section 1170.1, subdivision (d), and mirrored the language of the original version of section 1170, subdivision (b).

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435], 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 prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Subsequently, the United States Supreme Court reviewed Californias DSL in light of Apprendi, and concluded that the former version of section 1170, subdivision (b), created a presumption that the middle term was the statutory maximum to which a defendant could be sentenced. (Cunningham v. California, supra, 549 U.S. 270 [127 S.Ct. 856, 868, 871, 166 L.Ed.2d 856].) Thus, imposition of the upper term for a substantive offense, based on a judicial determination that aggravating factors were true by a preponderance of the evidence, violated a defendants Sixth Amendment right.

In response to the Cunningham decision, section 1170, subdivision (b), has been amended by urgency legislation to remove the statutory middle term presumption. Currently, section 1170, subdivision (b), provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.

However, the urgency legislation did not change section 1170.1, subdivision (d), which still establishes a presumption that the middle term is the maximum sentence for an enhancement where three possible terms are provided. (People v. Lincoln (2007) 157 Cal.App.4th 196, 205.) Like the Second District Court of Appeal in Lincoln, we do not know whether the lack of amendment to section 1170.1, subdivision (d), was deliberate or whether it was an oversight. (Lincoln, supra, at p. 205.) Thus, judicial reformation of the statute is not an option.

Defendant urges us to modify the sentence to impose the presumptive middle term for the enhancement without remanding to the trial court for resentencing. This we cannot do. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. (People v. Carmony (2004) 33 Cal.4th 367, 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) The trial court cited multiple factors relating to the defendants prior criminal record to support the upper term for the substantive crime, as well as a factor relating to the level of violence. Any one of the factors pertaining to his prior convictions would have justified the upper term (People v. Brown (2000) 83 Cal.App.4th 1037, 1043), leaving other factors for use in setting the term for the enhancement.

Additionally, the court may consider whether there are any other facts relevant to the selection of the enhancement term found by the jury beyond a reasonable doubt or admitted by the defendant, in determining whether to impose the aggravated, midterm or lower term on the enhancement. The determination of the appropriate sentence is not for us to decide, so we remand the matter for resentencing.

DISPOSITION

The convictions are affirmed; the sentence reversed and remanded for resentencing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Richli

J.

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^[1] All further references are to the Penal Code unless otherwise stated.