P. v. Guillen

Filed 8/28/07 P. v. Guillen 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Gary B. Tranbarger, Judge. Affirmed as modified.

Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, 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.

This is the second appeal by defendant and appellant Roberto Hernandez Guillen (hereafter defendant). In his first appeal, we agreed with his claim that the trial court erred when it failed to instruct the jury on misdemeanor false imprisonment as a lesser included offense to the charged crime of felony false imprisonment alleged in count 6. Therefore, we reversed that conviction^[1]and remanded to the trial court with directions either to retry defendant on the felony within 60 days or to reduce the conviction to a misdemeanor and resentence defendant accordingly. The latter occurred. In resentencing defendant, the trial court reimposed the original sentences on the convictions we had affirmed on appeal, and imposed a consecutive sentence of 180 days to be served at any penal institution on the misdemeanor false imprisonment conviction (count 6). As a result of the consecutive sentence, the trial court effectively increased defendants aggregate sentence from eight years, four months to eight years, 10 months.^[2]

Defendant challenges his new sentence on two grounds. First, he contends that the sentence violates the prohibition against imposing a longer sentence on a defendant who has successfully appealed his conviction. Second, defendant contends that the upper term sentence the trial court imposed on count 5, defendants conviction for felony child endangerment, violates defendants rights under the Sixth and Fourteenth Amendments to the United States Constitution to have all facts decided by a jury as set out in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].

We agree with defendants first claim, and therefore will stay execution of the sentence imposed on count 6. Otherwise, we will affirm.

FACTS

A detailed recitation of the facts underlying defendants crimes is not necessary in order to resolve the limited sentencing issues defendant raises in this appeal. To provide a context for those issues it is sufficient to note that defendant had an altercation with his girlfriend that prompted her six-year-old daughter to call 911. As the police arrived at the girlfriends home, defendant, his girlfriend, their 10-month-old son, and the girlfriends daughter all went into a back bedroom and hid. The police tried for nearly 20 minutes to rouse a response from inside but were unsuccessful so they forced entry. In the kitchen they encountered defendants girlfriend who was holding the baby. The girlfriend had a large cut on her forehead and the baby had a cut on the back of his neck both of which defendant inflicted when he swung his belt at the girlfriend. The girlfriend and the baby went outside with the officer, but defendant continued to hide in the back bedroom and would not allow the girlfriends daughter to leave. Eventually the SWAT team was called in and after several hours of negotiating defendant let the little girl go. A few minutes later defendant emerged from the bedroom.

DISCUSSION

We first address defendants assertion that on remand the trial court impermissibly increased defendants aggregate sentence.

1.

INCREASED AGGREGATE SENTENCE

The Attorney General concedes the first issue, noted above. We have reviewed the claim and conclude the concession is appropriate. It is settled that a felony defendants original aggregate prison term cannot be increased on remand for resentencing following a partially successful appeal. [Citations.] (People v. Burbine (2003) 106 Cal.App.4th 1250, 1253, citing People v. Serrato (1973) 9 Cal.3d 753, 763-764; and People v. Craig (1998) 66 Cal.App.4th 1444, 1447.) The trial court violated that rule in this case when it imposed a consecutive sentence of six months on defendants conviction for misdemeanor false imprisonment following defendants partially successful appeal. When originally sentenced, the trial court imposed a consecutive two-year sentence on defendants conviction for felony false imprisonment but stayed execution of that sentence pursuant to Penal Code section 654. On remand the trial court also should have stayed execution of the six-month consecutive sentence the trial court imposed on defendants misdemeanor conviction in order to avoid increasing defendants sentence following his partially successful appeal. Therefore, we will direct the trial court to stay execution of the sentence in question.

2.

UPPER TERM SENTENCE

Both originally and on remand, the trial court imposed the upper term sentence of six years on count 5, defendants conviction for felony child endangerment in violation of Penal Code section 273a, subdivision (a). After the trial court resentenced defendant, and while this second appeal was pending, the United States Supreme Court held in Cunningham v. California, supra, that Californias determinate sentencing law violates the Sixth and Fourteenth Amendments because it allows a judge to impose an upper term sentence based on facts found true by the judge rather than the jury. (Cunningham v. California, supra, 127 S.Ct. at p. 860.) As the high court explained, [T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Ibid.)

Because the trial court only resentenced defendant on count 6 and reaffirmed the sentence previously imposed by the original trial judge on the remaining counts, the only statement of reasons in support of the upper term sentence imposed on count 5 is contained in the record of defendants original sentencing hearing in case No. E034926. According to that record, the trial court imposed the upper term sentence of six years on count 5 because defendant exposed the child victim of that count to a violent potential shoot-out with the SWAT team for a prolonged period. His violent behavior earlier in the evening had caused her to have to call 911, and subsequently it is obvious to the Court that there was coercion on this child who testified. The trial court also noted that although the probation department indicated, in mitigation, that defendant did not have a significant record, in fact he was on probation at the time and has a felony prior, albeit under a different name, for [Penal Code section] 273.5 [willful infliction of corporal punishment, commonly referred to as spousal abuse], I hardly think that is a minimal record. Hes repeating the same kind of behavior, and this time there were children involved. So for that reason, the Court will impose the upper term.

Our California Supreme Court recently held that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of [the Sixth Amendment], any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 WL 2050875, p. 6]. As previously noted, the Supreme Court in Cunningham v. California, supra, retained the exception first articulated in Almendarez-Torres v. United States (1998) 523 U.S. 224 that a defendant does not have the right to have a jury determine the fact of a prior conviction in order to use that fact to increase the defendants sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 860.) The trial court, as noted above, relied on the fact of defendants prior conviction for spousal abuse as a basis for imposing the upper term sentence. That fact is sufficient to support the imposition of the maximum penalty in a sentencing range and does not violate defendants constitutional rights.

DISPOSTION

Defendants sentence is modified by staying execution of the sentence imposed on count 6, pursuant to Penal Code section 654. As modified, defendants sentence is affirmed. The trial court is directed to prepare an amended abstract of judgment that reflects defendants modified sentence and to forward copies of that abstract to the appropriate agencies.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Richli

J.

/s/ King

J.

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^[1]The jury had also found defendant guilty of spousal abuse, assault with a deadly weapon, and child endangerment, convictions that we affirmed in the first appeal.

^[2]The judge who resentenced defendant on remand was not the judge who had presided at defendants trial and had imposed defendants original sentence.