P. v. Ingram

Filed 7/3/07 P. v. Ingram 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. James T. Warren, Judge. Reversed with directions.

Seymour I. Amster for Defendant and Appellant

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Tyrone Ingram contends that trial court imposed an illegal sentence when it resentenced defendant after we remanded the case back to the trial court for resentencing. We find that defendants argument is barred by the doctrine of the law of the case.

In a supplemental brief, defendant contends that the imposition of the aggravated term violates the United States Supreme Courts recent decision in Cunningham v. California (2007) ___ U.S. ___, [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We agree that the imposition of the aggravated term violates Cunningham. Therefore, we shall remand the matter to the trial court for resentencing.

I

FACTUAL AND PROCEDURAL HISTORY

A jury convicted defendant of torture under Penal Code section 206^[1](count 1); mayhem (a lesser included offense of aggravated mayhem) under section 203 (count 2); kidnapping under section 207, subdivision (a) (count 3); and assault by means of force likely to produce great bodily injury under section 245, subdivision (a)(1) (count 5). Defendant was found not guilty of robbery under section 211 (count 4). The jury also found true that, in commission of the crimes charged in counts 3 and 5, defendant personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e).

The trial court sentenced defendant to an indeterminate term of life with the possibility of parole for torture. It imposed the upper term of eight years for the substantive offense of kidnapping and stayed the execution of a five-year enhancement term (i.e., the aggravated term) imposed under section 12022.7, subdivision (e).

Defendant appealed. (People v. Ingram (Apr. 25, 2005, E035291) [nonpub. opn.] (Ingram I).)^[2] In that appeal, although defendant raised no sentencing issues in his opening brief, the People contended in their respondents brief that the trial court erred in staying the five-year enhancement imposed for count 3. Defendant argued that his violation of the torture statute and the enhancement statute arose from a single act of causing great bodily injury; hence, punishment for both violations was precluded under section 654.

In our opinion, we agreed with the People that the statutory language of section 12022.7 demonstrated that the Legislature intended for the imposition of an additional and consecutive term of imprisonment where a defendant inflicts great bodily injury under circumstances involving domestic violence, if the infliction of great bodily injury is an element of the offense he or she committed. We rejected defendants contention that imposition of the enhancement was barred under section 654, as explained in People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044. We stated: The defendant in Chaffer made a similar argument as defendant in this case. He contended that his single act of causing a serious bodily injury resulted in a violation of both the felony cohabitant abuse statute and the great bodily injury enhancement statute, and punishment for both [was] prohibited by section 654. (Chaffer, supra, 111 Cal.App.4th at p. 1055.) The appellate court, however, concluded that section 12022.7 is a specific provision that operates as an exception to the more general statute, section 654[,] and held that the trial court did not err in sentencing defendant on both the underlying offense and the [great bodily injury] enhancement. (Id. at pp. 1044-1045.) (Ingram I, supra, at p. 14.)

We agreed with the reasoning in Chaffer and held that the trial court improperly believed that it was precluded from imposing a sentence under section 12022.7. Instead, the trial court, under section 12022.7, subdivision (e), had a mandatory duty to impose a sentence . . . . (Ingram I, supra, at p.15.) Therefore, we remanded the case to the trial court for resentencing. (Ingram I, supra, at p. 16.)

At the resentencing hearing, defense counsel again argued that [i]t is still the defendants position that a sentence imposed on the great bodily injury enhancement would violate section 654. The trial court implicitly rejected the argument when it imposed the previously stayed five year enhancement term.

II

ANALYSIS

A. Law-of-the-Case Doctrine

In the instant appeal, defendant contends that the imposition of the sentence enhancement is barred under section 654. The People argue that this argument is barred under the doctrine of the law of the case. We agree with the People.

The law-of-the-case doctrine is designed to prevent repetitive litigation of the same issue in a single criminal or civil case. (People v. Boyer (2006) 38 Cal.4th 412, 441, citing People v. Whitt (1990) 51 Cal.3d 620, 638 and People v. Shuey (1975) 13 Cal.3d 835, 841.) The doctrine of law of the case deals with the effect of the first appellate decision on the subsequent retrial or appeal. The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case. [Citation.] (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491, quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  895, p. 928.)

Application of the rule is now subject to the qualifications that the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision. [Citations.] [Citation.] An unjust decision may result when the controlling rules of law have been altered or clarified by a decision intervening between the first and second determinations of the appellate courts. [Citations.] [Citations.] (People v. Ramos (1997) 15 Cal.4th 1133, 1161, quoting People v. Shuey, supra, 13 Cal.3d at p. 842 and DiGenova v. State Bd. of Ed. (1962) 57 Cal.2d 167, 179-180.)

In the previous appeal, we actually and necessarily decided that (1) the trial court had a mandatory duty to impose the section 12022.7, subdivision (e) enhancement for defendants kidnapping conviction; and (2) the imposition of the enhancement was not barred under section 654. Defendant has identified no intervening developments that would alter our decision or the legal analysis upon which we based our earlier rejection of defendants contention.

Therefore, we conclude that defendants contention is barred by the doctrine of law of the case.

B. Cunningham

In his supplemental brief, defendant claims that the trial court denied him his federal constitutional right to a jury trial and due process when it sentenced him to the upper term in violation of Cunningham, supra, 127 S.Ct. 856. Defendant contends that Cunningham requires that a jury find aggravating factors before a trial court may impose the upper term. The People did not file a supplemental brief to address this issue.

In this case, the jury convicted defendant of kidnapping (count 3) and found true the allegation that, during the commission of the kidnapping, defendant personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e). The trial court sentenced defendant to the upper term of 8 years for the kidnapping conviction. The trial court also sentenced defendant to the upper term of 5 years for inflicting great bodily injury under section 12022.7, subdivision (e). At the resentencing hearing, the trial court ordered the five‑year enhancement for violation of section 12022.7 under count 3 to run consecutive to the sentence, for a total of 13 years.

At the original sentencing hearing, wherein the trial court imposed the upper term of 8 years, it stated: Im gong to handle the determinant sentence first, and that would be Count 3 is the principal determinant count, 207 of the Penal Code, kidnapping. And based upon the aggravating factors in this particular case, Im going to impose the upper term of 8 years with the possible 3, 5 or 8 years. The court went on to state: Ive chosen the upper term in this matter, and I alluded to it, because of the aggravating factors here. This crime involved great violence, bodily harm, indicated a high degree of cruelty, viciousness, and callousness, and, therefore, the upper term is wholly justified.

Based on the above, we find that the upper term sentence runs afoul of Cunningham,in which the Supreme Court held that Californias determinate sentencing law violates a defendants Sixth Amendment right to a jury trial to the extent it allows for increased punishment based on facts, other than a prior conviction, which were not found by a jury.

III

DISPOSITION

Defendants sentence is vacated and the matter is remanded for further proceedings consistent with Cunningham.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

McKINSTER

J.

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

^[2] By order dated December 20, 2006, we have taken judicial notice of the record in case No. E035291.