P. v. Ramirez

Filed 6/1/07 P. v. Ramirez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury convicted appellant Joseph Ramirez of two counts of lewd act on a child by force (Pen. Code, 288 subd. (b), counts one and two); sexual battery by unlawful restraint (Pen. Code, 242/243.4 subd. (a), count five); and sexual penetration by force (Pen. Code, 289, subd. (a)(1), count six). As to counts one, two and six, the jury found true an allegation that appellant committed an offense specified in Penal Code section 667.61, subdivision (c) against more than one victim.[1] (See case number H024606.)

Appellant appealed his conviction and his initial sentence of 45 years to life in state prison. In an unpublished opinion (H024606 filed January 6, 2004), we reversed appellant's conviction on count six, reduced the conviction on count five to a misdemeanor and remanded the case to the trial court for resentencing.

On April 8, 2004, the trial court resentenced appellant to a total term of 16 years in state prison on counts one and two, consisting of the upper term of eight years on count one and a full, consecutive term of eight years on count two. In addition, the court imposed a concurrent county jail term of six months on count five and a $200 restitution fine. The court granted custody credits of 449 days consisting of 391 actual days and 58 days of Penal Code section 4019 conduct credits.

Appellant filed a timely notice of appeal on April 28, 2004.

In his appeal after resentencing, appellant contended that the trial court's imposition of full, separate, and consecutive terms for counts one and two violated Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely). In addition, appellant contended that the trial court erred by failing to recalculate and update his custody credits to the date of resentencing. The Attorney General conceded that appellant was entitled to have his custody credits recalculated. We remanded to the trial court for recalculation of defendant's custody credits. In all other respects, we affirmed the judgment. Appellant petitioned the California Supreme Court for review. The California Supreme Court denied review on January 18, 2006.

Subsequently, the United States Supreme Court, having decided Cunningham v. California (2007) 549 U.S. , 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham), granted appellant's petition for certiorari, vacated our opinion, and remanded the matter back to us for reconsideration in light of Cunningham. Upon reconsideration of the sentencing issue, we agree that Cunningham requires resentencing. Accordingly, we remand to the trial court for a new sentencing hearing.[2]

Briefly, again, we recite the facts of this case as they pertain to this appeal.

Facts

Counts One and Two

During 2000 and part of 2001, 13-year-old Francis lived in San Jose with her older sister, her brothers and her aunt Jenny. In addition, Jenny's daughter Candy, a granddaughter Pamela, and appellant, lived in the house. The house had four bedrooms. Francis and her sister shared a room and slept in bunk beds. Appellant had the bedroom next to theirs.

Francis testified to an incident that occurred when she and her older sister were alone with appellant in the house. Her sister was in the bathroom cleaning her shoes when appellant called Francis into his bedroom and told her to lie on the bed. Appellant was already on the bed, lying on his right side. He was wearing his clothes. Francis lay on her right side in front of appellant. Appellant "scooted" her closer to him with his left hand, placed his right had over her mouth and told her not to say anything. Appellant's erect penis touched her "butt" through the outside of her clothes. The touching stopped when the doorbell rang and Francis got up to answer the door.

On another day, appellant called Francis into the bedroom again. This time, lying on his right side he used his left hand to put a blanket over her month, told her not to say anything, and then put his right arm over her waist and began pulling her closer to him. Francis felt appellant start to do the same things as he had done on the previous occasion. Then, he touched her "private parts" with his hand. Appellant's fingers touched Francis's back and stomach as he tried to go under the front of her pants.

Discussion

Full Term Consecutive Sentences

In sentencing appellant to the eight years on count one and the consecutive eight years on count two, the trial court stated that it was "using the upper term since the factors in aggravation outweigh those in mitigation."

In a supplemental probation report, the probation officer made the following recommendation. "As the defendant committed Multiple Violent Sexual Acts, which also occurred on separate occasions, a full, separate and consecutive terms [sic] shall be imposed as to each remaining count, pursuant to Section 667.6 (d) of the Penal Code. As the defendant's actions involved violent conduct, which indicates a serious danger to society, it is respectfully recommended the defendant serve an aggravated term of 16 years in the California Department of Corrections."

The probation report notes three factors in aggravation: First, "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." Second, "[t]he defendant took advantage of a position of trust or confidence to commit the offense." Finally, "[t]he defendant has engaged in violent conduct, which indicates a serious danger to society." The one factor in mitigation is noted as "[t]he defendant has no prior record, or an insignificant record of criminal conduct, considering the recency and frequency of prior crimes."

Appellant filed a Statement in Mitigation in which he asked the court to grant him probation or impose the lower term for one violation of Penal Code section 288, subdivision (b) and run the remaining counts concurrently.

At the resentencing hearing, the prosecutor agreed with the probation officer's recommendation that the court impose upper terms on counts one and two. Defense counsel argued that the probation officer had used faulty logic in recommending the upper term. He pointed out that appellant did not have a prior criminal record.

In reply, the trial court noted that the "probation officer indicates that the defendant committed multiple violent sexual acts, namely the two counts. This also occurred on separate occasions. And the probation officer, therefore, is recommending the upper term since the defendant's actions involve violent conduct which indicated a serious danger to society."

Defense counsel argued that the probation officer's recommendation was based on the "illegal dual use of facts." In addition, counsel argued that the court should impose the lower term because defendant did not have a prior criminal conviction. Further, counsel urged the court to consider that the "crimes could be viewed as committed so closely in time and place as to indicate a single period of aberrant behavior."

The court sentenced defendant, stating: "In this matter, it is ordered that probation be denied in view of the nature and circumstances of the case. [] As to Counts 1 and 2, it is the judgment of the Court that the defendant be committed to the State Department of Corrections as to Count 1 for the upper term of eight years; and as to Count 2, for the upper term of eight years. [] Those terms to run consecutively to the sentence in -- Count 2 to run consecutive to the sentence imposed as to Count 1. [] The Court is using the upper term since the factors in aggravation outweigh those in mitigation."

In Cunningham, supra, 549 U.S. (127 S.Ct. 856) the Supreme Court held that because California's Determinate Sentencing Law permits a trial court to impose an upper term based on facts found by the court, rather than by a jury beyond a reasonable doubt, it violates a defendant's Sixth and Fourteenth Amendment right to a jury trial. (Id. at p. ___ [127 S.Ct. at p. 871].)

Thus, since the trial court imposed the upper term on counts one and two based on factors not found by a jury, the court violated appellant's Sixth and Fourteenth Amendment right to a jury trial. Accordingly, appellant is entitled to a new sentencing hearing.[3]

Custody Credits

When the court sentenced defendant the first time on June 7, 2002, the court granted custody credits of 449 days, consisting of 391 actual days and 58 conduct days. At the resentencing hearing on April 28, 2004, the court once again granted custody credits of 449 days, consisting of 391 actual days and 58 conduct days.

Defendant argues that he was entitled to have his custody credits updated. The Attorney General concedes the issue. We agree.

Having modified defendant's sentence on remand, the trial court "was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time." (People v. Buckhalter (2001) 26 Cal.4th 20, 37.)

Accordingly, we remand this case to the trial court to recalculate defendant's custody credits.

Disposition

The case is remanded to the lower court for a new sentencing hearing, during which the court shall recalculate defendant's custody credits. In all other respects, the judgment is affirmed.

______________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] We have taken judicial notice of the record in case number H024606.

[2] Our discussion of the other issue raised by appellant is identical to our original opinion in this case. We discuss this issue again because our earlier decision was vacated, not because we have revisited that issue.

[3] We recognize that Cunningham was concerned only with the imposition of the upper term under California sentencing law, not with consecutive sentencing. However, the United States Supreme Court vacated entirely People v. Black (2005) 35 Cal.4th 1238. (See Black v. California(2007) ___ U.S. ___ [127 S.Ct. 1210].) People v. Black, supra, 35 Cal.4th 1238, held that a defendant's right to a jury trial is not implicated when a judge exercises discretion to impose consecutive terms. (Id. at p. 1244.) Like any other judgment, one rendered by our state Supreme Court is rendered null and void when reversed or vacated. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 758, p. 783, latter italics added ["The effect of an unqualified reversal . . . is to vacate the judgment, and to leave the case 'at large' for further proceedings as if it had never been tried, and as if no judgment had ever been rendered"].) Accordingly, the vacated decision in Black is not strictly binding on any point of law.