P. v. Stevens

Filed 10/27/06 P. v. Stevens CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

CARL ANTHONY STEVENS,

Defendant and Appellant.

E039707

(Super.Ct.No. RIF117896)

OPINION

APPEAL from the Superior Court of Riverside County. Robert W. Armstrong, Judge. (Retired judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

Laurel Nelson Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

On or about July 2, 2004, defendant and appellant Carl Anthony Stevens (defendant) and two codefendants^[1] unlawfully and willfully possessed cocaine base.

On July 8, 2004, defendant pleaded guilty to possessing cocaine, a violation of Health and Safety Code section 11350, subdivision (a) (count 2). In exchange, count 1 -- possessing marijuana for sale, a violation of Health and Safety Code section 11359 -- was dismissed. Thereafter, defendant was granted probation on the condition that defendant participate in a drug recovery program. When defendant failed to enroll in the program, the trial court gave defendant numerous additional opportunities to comply with the court’s order. Defendant, however, never complied. Eventually, the trial court sentenced defendant to the upper term of three years on count 2.

On appeal, defendant contends that the trial court erred in selecting the upper term and in calculating his presentence custody credits. The People concede that the trial court erred in selecting the upper term. We agree and will remand the matter for a new sentencing hearing.

DISCUSSION

A. The Trial Court Erroneously Imposed the Upper Term Based on a Factor that Was Not Established by the Evidence

Under Penal Code^[2] section 1170, subdivision (b), a “court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” However, “‘[s]entencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’ [Citation.]” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) “[A] single factor in aggravation suffices to support an upper term.” (People v. Osband (1996) 13 Cal.4th 622, 730, distinguished on other grounds by People v. Lucero (2000) 23 Cal.4th 692.)

Circumstances in aggravation and mitigation shall be established by a preponderance of the evidence. (Cal. Rules of Court, rule 4.420(b).) Furthermore, “each aggravating factor must be supported by the evidence in the record.” (People v. Searle (1989) 213 Cal.App.3d 1091, 1096, citing People v. Arbee (1983) 143 Cal.App.3d 351, 356, and People v. Berry (1981) 117 Cal.App.3d 184, 198.) “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.” (§ 1170, subd. (b).) Section 1170, subdivision (b) further states that “[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.”

In this case, after defendant admitted violating a probation condition, he was sentenced to the upper term of three years on the original charge of possessing cocaine base. Defense counsel objected to the imposition of the upper term. Counsel stated: “I don’t believe there’s any aggravating factors before the Court that would justify the imposition of the upper term.” In response, the trial court stated, “looking over the report, the fact that [defendant] had a weapon at the time that he was arrested,” combined with the fact that no mitigating circumstances existed, the factors in aggravation outweighed the factors in mitigation. The court, therefore, imposed the upper term.

A review of the record shows that, when defendant and the two codefendants entered guilty pleas, the parties relied on and stipulated to police report number MV04184233 as providing the factual basis for their guilty pleas. As provided above, the trial court imposed the upper term because, according to the trial court, the police report indicated that defendant possessed a weapon at the time he was arrested. Nothing in the police report, however, indicates that defendant possessed a weapon at the time of arrest. The People concede this fact: “[T]he police report, which has now been augmented into the records, does not show any weapons were involved at all.” Therefore, the People agree with defendant that “[t]he matter should be remanded to the trial court for a new sentencing hearing.”

In sum, because the trial court imposed the upper term based on a fact that was not supported by the evidence in the record, this case is remanded to the trial court for a new sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 355.) At the new sentencing hearing, the trial court shall also address defendant’s claim that he is entitled to additional presentence custody credits.

DISPOSITION

The case is remanded for resentencing. In all other respects, the judgment is affirmed. The court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

We concur:

/s/ RAMIREZ

P. J.

/s/ RICHLI

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^[1] The codefendants are not parties to this appeal.

^[2] All further statutory references will be to the Penal Code unless otherwise indicated.

Description	Defendant pleaded guilty to possessing cocaine in exchange for the possessing marijuana for sale count to be dismissed. Thereafter, defendant was granted probation on the condition that defendant participate in a drug recovery program. When defendant failed to enroll in the program, the trial court gave defendant numerous additional opportunities to comply with the court’s order. Defendant, however, never complied. Eventually, the trial court sentenced defendant to the upper term of three years on count 2. On appeal, defendant contends that the trial court erred in selecting the upper term and in calculating his presentence custody credits. Court remanded the matter for a new sentencing hearing.
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