Filed 9/2217 P. v. Garcia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed as modified.

Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

In March of 2016, a jury found Isidro Medrano Garcia committed three lewd acts on a child 14 or 15 years old while he was at least 10 years older than the child (Pen. Code,[1] 288, subd. (c)(1)) in 2004. The court sentenced defendant to an aggregate term of four years four months, consisting of an upper term of three years on one of the counts, and consecutive eight-month terms on each of the two remaining counts. In addition to other fines, the court imposed a $300 sex offense fine pursuant to section 290.3. Defendant contends imposition of an upper term sentence violated his Sixth Amendment right to a jury trial and violated constitutional ex post facto provisions. He also contends the sex offense fine should be reduced to $200, the amount provided by statute at the time he committed the offenses. The Attorney General agrees the sex offense fine should be reduced to $200, the amount provided by section 290.3 in 2004. We accept the concession and will order the judgment amended to reflect the proper fine, and otherwise affirm the judgment as modified.

I

FACTS

For purposes of the issues raised on appeal, a detailed recitation of the facts is unnecessary. The following facts suffice. Defendant was convicted of three counts of molesting his girlfriend’s 15-year-old daughter over a three month period in 2004.

II

DISCUSSION

We begin by noting defendant did not object to the trial court’s imposition of the upper term sentence of three years as a violation of his Sixth Amendment right to a jury trial, or as a violation of the ex post facto clauses of the state and federal Constitutions. We address these issues notwithstanding the failure to object because each presents a pure question of law, which we review de novo. (People v. Castillo (2008) 168 Cal.App.4th 364, 375.) Moreover, addressing the issue now means we will not have to address the issue in the future on a claim of ineffective assistance of counsel. (People v. Landau (2016) 246 Cal.App.4th 850, 863.)

A. The Determinate Sentencing Law in 2004

Section 288, subdivision (c)(1), the statute defendant stands convicted of violating three times in 2004, provided then, as it does now, three possible terms in state prison: one year, two years, or three years. (§ 288, subd. (c)(1).)

At the time of defendant’s offenses in 2004, section 1170, subdivision (b) provided, in pertinent part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. . . . In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under Sections 667.5, 1170.1, 12022, 12022.4, 12022.5, 12022.6, or 12022.7 or under any other of law. . . .” (Stats. 1998, ch. 338, § 2, italics added.) The California Rules of Court contained a list of aggravating factors. (People v. Black (2005) 35 Cal.4th 1238, 1247.)

In 2007, in response to the United States Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. 270, finding section 1170, subdivision (b), violated a criminal defendant’s right to a jury trial, the Legislature amended section 1170, subdivision (b), to remove the unconstitutional provision authorizing a trial judge to find aggravating facts. (Stats. 2007, ch. 3, § 2; People v. Sandoval (2007) 41 Cal.4th 825, 845 (Sandoval).) By the time of defendant’s trial in 2016, section 1170, subdivision (b), had attained its present form. “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. . . . In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. . . .” (§ 1170, subd. (b); added by Stats. 2010, ch. 256, § 5, italics added.)

B. Sixth Amendment

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that under the Sixth Amendment right to a jury trial, “[o]ther 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.” (Italics added.) In Blakely v. Washington (2004) 542 U.S. 296, 303, the high court held the “statutory maximum” for purposes of its Apprendi decision “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 defendant in Blakely v. Washington, supra, 542 U.S. 296, pleaded guilty to kidnapping his estranged wife. Based on the facts admitted in his guilty plea, his maximum possible punishment was 53 months. The court, however, sentenced the defendant to 90 months, based on its finding that the defendant “acted with ‘deliberate cruelty,’” which justified an “‘exceptional’ sentence” under Washington law. (Id. at p. 298.) The Supreme Court held the Washington court’s use of facts not admitted in the defendant’s guilty plea to impose a more severe sentence than that permitted by the facts admitted by the defendant in his plea violated the Sixth Amendment as explained in Apprendi, supra, 530 U.S. 466. (Blakely v. Washington, supra, 542 U.S. at p. 305.)

Three years later, a Sixth Amendment challenge to California’s determinate sentencing law was before the Supreme Court in Cunningham v. California, supra, 549 U.S. 270. The high court held that for purposes of the Sixth Amendment, the middle term of California’s triad of possible sentences is the maximum possible punishment for the crime, absent an admission of the aggravating fact(s) or the jury finding aggravating facts beyond a reasonable doubt. (Id. at pp. 274-275, 293.)[2] Our determinate sentencing law was found to violate the Sixth Amendment because it “allocates to judges sole authority to find facts permitting the imposition of an upper term sentence,” contrary to Apprendi, supra, 530 U.S. 466 and subsequent cases, including Blakely v. Washington, supra, 542 U.S. 296. (Cunningham v. California, supra, 549 U.S. at p. 293.) It was left to the California courts to adjust the state’s sentencing system to comply with the decision in Cunningham. (Ibid.)

Six months after the decision in Cunningham v. California, supra, 549 U.S. 270, the California Supreme Court decided Sandoval, supra, 41 Cal.4th 825. In Sandoval, the Court was called upon to fashion a remedy for the situation where a trial court aggravated a defendant’s sentence based on facts found by the judge, not the jury. (Id. at pp. 831-832.) The defendant in Sandoval was sentenced to an aggravated term based on the facts underlying the crime, but had not been admitted by the defendant nor determined true by the jury. (Id. at pp. 837-838.) The Court found a Sixth Amendment violation and turned to the issue of an appropriate remedy. (Id. at pp. 838, 843.)

The Attorney General urged the Sandoval court to reform section 1170 to provide the trial court with discretion to impose any of the three state prison terms provided by the Penal Code. Under the proposed reformation, a trial court could impose any of the three state prison terms provided it considered aggravating and mitigating circumstances listed in statutes and court rules. (Sandoval, supra, 41 Cal.4th at p. 843.) Under the proposed reformation, a trial court would be authorized to impose an upper term sentence without it finding additional facts. (Id. at pp. 843-844.)

Our Supreme Court concluded such a reformation would cure the Sixth Amendment defect. (Sandoval, supra, 41 Cal.4th at p. 844.) Support for that position was found in two United States Supreme Court Sixth Amendment sentencing cases. In United States v. Booker (2005) 543 U.S. 220, 226, 233, the mandatory Federal Sentencing Guidelines were found to violate the Sixth Amendment. However, the Court noted, “If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment.” (Ibid.) And, in addressing possible remedies in California, the Court in Cunningham v. California, supra, 549 U.S. at page 294, pointed out that other states faced with unconstitutional sentencing schemes “have chosen to permit judges genuinely ‘to exercise broad discretion . . . within a statutory range,’ which, ‘everyone agrees’ encounters no Sixth Amendment shoal. [Citation.]”

Ultimately, the Sandoval Court decided it did not have to reform the determinate sentencing law because the Legislature had done so in response to the decision in Cunningham v. California, supra, 549 U.S. 270. (Sandoval, supra, 41 Cal.4th at p. 836, fn. 2; see § 1170, subd. (b).) Consequently, the Court held the amended determinate sentencing law would apply on remand. (Id. at p. 846.) In other words, on remand, “[t]he trial court will be required to specify reasons for its sentencing decision, but will not be required to cite ‘facts’ that support its decision or to weigh aggravating and mitigating circumstances. [Citations.]” (Id. at pp. 846-847.)

In the present case, the trial court below did not make any findings of fact. Because the determinate sentencing law was reformed to cure the constitutional flaw in the earlier version of section 1170, subdivision (b), and defendant was sentenced by the trial court under the reformed statute, he was not denied his right to a jury trial when the trial court sentenced him to the upper term. (Cunningham v. California, supra, 549 U.S. at p. 294; United States v. Booker, supra, 543 U.S. at p. 249; Sandoval, supra, 41 Cal.4th at p. 851.)

C. Ex Post Facto

Defendant claims his maximum possible punishment in 2004, for a violation of subdivision (c)(1) of section 288, was the middle term of two years, since the jury did not find aggravating factors. He contends that as he was sentenced under the present version of section 1170, subdivision (b), wherein the trial court exercised its sentencing discretion, but was not required to find additional facts as was required of a sentencing court in 2004, application of the new statute to his crime violated the constitutional prohibition against ex post facto laws.

The federal and state Constitutions each prohibit ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) The California ex post facto clause is co-extensive with its federal counterpart. (People v. Snook (1997) 16 Cal.4th 1210, 1220.) “[W]e interpret the ex post facto clause in the California Constitution no differently than its federal counterpart. [Citations.]” (Ibid.)

In Calder v. Bull (1798) 3 U.S. 386, 390, an ex post facto law was described as any law that: (1) is enacted after an act has occurred and the law makes the act criminal, although the act had been innocent when performed; (2) aggravates a crime or make it greater than it was when committed; (3) increases the punishment for a crime committed before enactment; or (4) alters the rules of evidence to receive less, or different, testimony than the law in effect at the time the offense was committed “in order to convict the offender.” (See also People v Trujeque (2015) 61 Cal.4th 227, 256.) More recently, the Supreme Court held “two critical elements” are required for a law “to fall within the ex post facto prohibition . . . : first, the law ‘must be retrospective, that is, it must apply to events occurring before its enactment’; and second, ‘it must disadvantage the offender affected by it.’ [Citation.]” (Miller v. Florida (1987) 482 U.S. 423, 430.)

Defendant contends the amendment to section 1170, subdivision (b), after the commission of his crimes altered the law to his detriment. He reasons that prior to the amendment of section 1170, subdivision (b), he was subject to a middle term of two years for a violation of section 288, subdivision (c)(1), unless a jury found an additional fact—an aggravating fact—which would then support the imposition of an upper term sentence, and after the amendment, no such additional fact need be proven before an upper term sentence could be imposed.

Contrary to defendant’s assertion, the amendment to section 1170, subdivision (b), did not alter the law to his detriment. The proof is in the pudding. Had defendant been tried, convicted, and sentenced to an upper term without a jury finding or his admission of an aggravating fact prior to the 2007 amendment to section 1170, subdivision (b), that would have been a violation of his Sixth Amendment right to trial. (Cunningham v. California, supra, 549 U.S. at p. 293; Sandoval, supra, 41 Cal.4th at pp. 837-838.) However, the remedy for such a violation would have been to remand the matter to the trial court to exercise its discretion in sentencing him without regard to the mandatory nature of section 1170, subdivision (b)’s requirement that the judge find an additional fact or facts. (Sandoval, supra, 41 Cal.4th at p. 846; cf. United States v. Booker, supra, 543 U.S. at p. 245 [the remedy for the constitutional violation wrought by the Federal Sentencing Guidelines’ mandatory provision was to strike the provision, making the Guidelines merely advisory].) As the Court recognized in Sandoval, supra, 41 Cal.4th at page 850, “[W]e believe it is both accurate and realistic to recognize that, in practical terms, the difference between the pre-Cunningham provision of the DSL [(determinate sentencing law)] enacted by the Legislature and a statutory scheme in which the trial court has broad discretion to select among the three available terms is not substantial. It seems likely that in all but the rarest of cases the level of discretion afforded the trial court . . . would lead to the same sentence as that which would have been imposed under the DSL as initially enacted.”

Defendant was on notice in 2004, that if he violated section 288, subdivision (c)(1), the crime was punishable by a prison term of one year, two years, or three years. Prior to the decision in Cunningham v. California, supra, 594 U.S. 270, California trial courts routinely imposed upper term sentences when aggravating factors were found by the trial court to outweigh any mitigating factors. We are not aware of any case in which criminal defendants were provided jury trials on the issue of the existence of aggravating factors. Had defendant been tried for his crimes in 2004, the issue of aggravating facts would not have been tried to a jury. And had the trial court sentenced defendant to an upper term, the remedy for the Sixth Amendment violation would have been to remand the matter for a new sentencing hearing wherein the trial judge would exercise his or her discretion as section 1170, subdivision (b) presently provides, and just like the hearing defendant had in the present case. Thus, it is evident that applying the amended version of section 1170, subdivision (b), to defendant’s sentencing on offenses committed in 2004, did not operate to his disadvantage.

D. The Sex Offense Fine

The court below imposed a section 290.3 sex offense fine of $300. At the time defendant committed his offenses in 2004, subdivision (a) of section 290.3 provided for a fine of $200. (Stats. 1995, ch. 91, § 121.) We accept the Attorney General’s concession that the sentencing court erred in imposing the $300 fine the statute presently provides. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249; see Stats. 2006, ch. 337, § 18, eff. Sept. 20, 2006.) We therefore will order the clerk of the superior court to amend the abstract of judgment to reflect a section 290.3 fine of $200.

III

DISPOSITION

The abstract of judgment is ordered amended to reflect a section 290.3 fine of $200. The clerk of the superior court is directed to serve the Department of Corrections and Rehabilitation with a certified copy of the amended abstract of judgment. In all other respects, the judgment is affirmed as modified.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

THOMPSON, J.