P. v. Howard

Filed 10/15/07 P. v. Howard CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Szumowski, Judge. Affirmed as modified.

Michael Todd Howard appeals an upper term sentence and restitution and revocation fines for his conviction of burglary with intent to commit rape (Pen. Code,[1]  459, 460, 1202.4, subd. (b), 1202.44, 1204.45). He contends the upper term sentence violates his rights to due process and a jury trial, and the amounts of the restitution and revocation fines were unjustified. We conclude the upper term sentence was properly imposed and Howard waived the challenges to the amounts of the fines by failing to raise the matter below. We find, however, that the minutes and abstract of judgment need to be corrected to reflect all the fines imposed by the court. We affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On the morning of September 17, 2003, Howard knocked on the door of Stephanie C. and, without waiting for a response, walked into her apartment, shut the door and hit her. He held her while she struggled. She was afraid he was going to kill or rape her. She managed to free herself and told him to take whatever he wanted but to let her go. He asked about her "chat name." She told him she did not have a computer. He then "backed off," asked if she had a computer, and said something like, "Oh my God. I'm sorry. I thought you were someone else." Stephanie fled from the apartment. She suffered a cut lip, bruises and a bite mark on her shoulder.

Howard believed Stephanie was a person he met in an Internet chat room named stchloetheirritated (St. Chloe the Irritated), who was interested in sharing a rape fantasy. Based on St. Chloe the Irritated's hints about where she lived and what she looked like, Howard surveilled Stephanie's apartment complex and concluded Stephanie was St. Chloe the Irritated.

In exchange for the dismissal of other charges, Howard pleaded guilty to residential burglary ( 459, 460) and he was granted probation.

In July 2006, when Howard's probation was revoked, the court imposed an upper term sentence for the residential burglary on the basis the aggravating factors outweighed the mitigating factors. The court relied on the following aggravating factors: the offense involved a threat of great bodily harm as demonstrated by the victim being attacked in her own home and Howard's intention of fulfilling a rape fantasy (California Rules of Court,[3] rule 4.421(a)(1)); Howard had engaged in violent conduct indicating he was a serious danger to society (rule 4.421(b)(1)); his prior convictions were of increasing seriousness (rule 4.421(b)(2)); he had served a prior prison term (rule 4.421(b)(3)); and he was on probation when he committed the offense (rule 4.421(b)(4)). The court imposed a restitution fine of $1,200 pursuant to section 1202.4, subdivision (b), with payment to begin "forthwith" pursuant to section 2085.5, a $1,200 parole revocation fine pursuant to section 1202.45, which it suspended unless Howard's probation was revoked, and a $200 probation revocation fine pursuant to section 1202.44.[4]

DISCUSSION

I

Howard contends the imposition of an upper term sentence based on facts he had not admitted or had not been found true by a jury was unconstitutional.[5]

At the time Howard was sentenced, California's Determinative Sentencing Law (DSL), specified three terms of imprisonment for most offenses and specified 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).)[6] The sentencing court determined the facts for these sentencing choices by a preponderance of the evidence standard. ( 1170, subd. (b); rule 4.420(b).)

In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court, in reviewing the State of Washington's determinate sentencing scheme, held a sentence could not be imposed by a court beyond "the statutory maximum" based on facts neither admitted by the defendant nor found true by a jury using a reasonable doubt standard except for the fact of a prior conviction. (Id. at pp. 301, 303; see also Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham).) Our

California Supreme Court held California's DSL comported with Blakely, in part, on the basis that the DSL's upper term represented the "maximum term" that could be imposed. (People v. Black (2005) 35 Cal.4th 1238, 1253 (Black I).) In Cunningham the United States Supreme Court disagreed and held the "statutory maximum" in California's DSL was the middle term and held the DSL violated the Sixth and Fourteenth Amendments by mandating that a sentencing court impose the upper term if it found the aggravating factors outweighed the mitigating factors and the aggravating factors had not been admitted by the defendant, found true by the jury using a reasonable doubt standard or did not involve the fact of a prior conviction. (Cunningham, 549 U.S. at p. ___, 127 S.Ct. at p. 868).

In response to the Cunningham decision, the California Supreme Court issued Black II, in which it held that "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Black II, supra, 41 Cal.4th at p. 813.) Thus, under Black II, the existence of a single aggravating factor is sufficient to make the defendant eligible for the upper term: "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.' " (Black II, at p. 813.)

Here, among the factors the court relied on were that Howard's prior convictions were of increasing seriousness. In Black II, supra, 41 Cal.4th at pages 819-820, the California Supreme Court specifically found the fact prior convictions were "numerous or of increasingly seriousness" fell within the fact of a prior conviction exception. Thus, Howard's increasingly serious prior convictions made him eligible for an upper term, he was no longer entitled to a middle term sentence, and the court could consider other aggravating factors. There was no Blakely/Cunningham violation in this case.

II

Imposition of Restitution and Revocation Fines

Howard challenges the amounts of the $1,200 restitution fine ( 1202.4, subd. (b)), the $1,200 revocation fine ( 1202.45), and the $200 revocation fine ( 1202.44). Howard did not object to the amounts of the fines when he was sentenced following the revocation of probation. Unlike his claim of error in imposing the upper term, this was not a situation where an objection would have been futile. While Howard claims that at the probation revocation hearing he did not have an opportunity to object because the court, without discussion, imposed the fines, he ignores the fact that he had notice of the amount of the fines both through the prior sentencing hearing and in the probation report for this sentencing. If Howard desired to dispute the amount of the fines in light of the various factual matters he now raises on appeal, he should have raised the matter below. (See People v. Smith (2001) 24 Cal.4th 849, 852.)

Because the trial court orally stated that it imposed a $200 revocation fine under section 1202.44, but the court minutes and abstract of judgment do not mention this, we conclude these documents must be corrected to accurately reflect the sentence.

DISPOSITION

The judgment is affirmed as modified. The trial court is directed to prepare a corrected abstract of judgment reflecting the modification and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

HALLER, J.

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[1] All statutory references are to the Penal Code unless otherwise specified.

[2] Because defendant pleaded guilty, our statement of facts is taken from the preliminary hearing and the probation officer's report.

[3] All references to rules are to the California Rules of Court.

[4] The reporter's transcript shows the court imposed a $200 revocation fine under section 1204.44 but neither the court minutes nor the abstract of judgment accurately reflect this. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes. (People v. Price (2004) 120 Cal.App.4th 224, 242.)

[5] We invited the parties to submit additional briefing to address the Supreme Court's opinions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.

[6] The California Legislature amended California's sentencing law by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3,  2, to be repealed Jan. 1, 2009.) Unless otherwise specified, our references to section 1170 are to the statute as it read prior to those amendments.