P. v. Hallett

Filed 8/29/07 P. v. Hallett CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed and remanded for resentencing.

William Flenniken, Jr., 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, Assistant Attorney General, Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Richard Leroy Hallett was placed on probation after he pleaded guilty to possession of methamphetamine and unauthorized possession of a hypodermic needle or syringe, and admitted he suffered a prior conviction for which he served a prison term. The terms of defendants probation included that he [v]iolate no law. While on probation, defendant was arrested for burglary. The trial court concluded that defendant violated the terms of his probation, and imposed sentence on the methamphetamine‑related offenses.

Defendant contends the trial court erred by imposing the upper term sentence for the possession of methamphetamine offense based on a fact not admitted or found true by a jury beyond a reasonable doubt. We do not reach this issue because the court erred by failing to state the basis for its decision to impose the upper term sentence as required by rule 4.420(e)[1] of the California Rules of Court. In addition, the trial court could not use the probation for the possession of methamphetamine offense as a reason to impose the upper term after revocation of that same probation. We therefore remand to the trial court for resentencing, and otherwise affirm the judgment.

BACKGROUND

Defendant was charged in a felony complaint with one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) (count 1), and one count of unauthorized possession of a hypodermic needle or syringe in violation of Business and Professions Code section 4140 (count 2) (collectively the methamphetamine-related offenses). The complaint further alleged that, pursuant to Penal Code section 667.5, subdivision (b), defendant had been previously convicted of a violation of section 487, for which he served a separate prison term of one year and more and defendant did not remain free for a period of five years of both prison custody and the commission of the above felony offense.

Defendant pleaded guilty to the methamphetamine-related offenses and admitted the prior conviction and prior prison term allegations. In December 2005, the trial court suspended imposition of sentence, and placed defendant on formal probation for three years, with terms including that defendant [v]iolate no law.

In January 2006, the prosecution filed a petition alleging that on January 13, 2006, defendant was arrested for first degree burglary. The prosecution recommended the trial court find defendant in violation of the terms of his probation for the methamphetamine-related offenses as a result of his involvement in the burglary incident, and impose sentence accordingly.

The record contains what appears to be a portion of defendants jury trial on one count of first degree burglary charged against defendant (the burglary offense). The court declare[d] the jury to be deadlocked and declare[d] a mistrial. Defendant moved to dismiss the case. The following colloquy ensued.

The Court: Well, you are a little premature. That is why we are resetting it down for another date. So, pick a date, and were talking now about the probation violation. [] Any further argument on the probation violation? There is a different standard, of course, in determining whether someone is in violation.

[Defense counsel]: I understand that, and I understand that this case is the basis of the violation.

The Court: Yes.

[Defense counsel]: Yes. Okay. Your honor, he didnt do it.

The Court: The court finds the defendant is in violation of probation. [] Sentencing on another date convenient to counsels schedule. Pick your date.[2]

At the sentencing hearing, the trial court dismissed the burglary offense. The court entertained argument on the appropriate sentence that should be imposed for the methamphetamine-related offenses, and then sentenced defendant to a four‑year prison term by (1) imposing the three‑year upper term on count 1; (2) staying sentence on count 2; and (3) imposing a consecutive one-year term for the admitted prior conviction and prior prison term allegations under Penal Code section 667.5, subdivision (b).

Defendant appealed.

DISCUSSION

Citing Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), defendant solely argues on appeal that the trial court violated his constitutional rights by imposing an upper term sentence for count 1 without a jury finding on the existence of aggravating factors or obtaining a jury waiver.[3] As discussed in detail post, we do not reach the issue whether any aggravating factor relied upon by the trial court in imposing the upper term sentence on count 1 had to be found true beyond a reasonable doubt by a jury pursuant to Cunningham because the court erred by failing to clearly state its reasons for imposing the upper term sentence as required by rule 4.420(e) of the California Rules of Court.

Rule 4.420(a) of the California Rules of Court states, [w]hen a sentence of imprisonment is imposed, or the execution of a sentence of imprisonment is ordered suspended, the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in [Penal Code] section 1170[, subdivision ](b) and these rules. Rule 4.420(b) states in part, [i]n exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. Rule 4.421(b) contains a list of facts constituting circumstances in aggravation relating to the defendant which include facts that the defendant has engaged in violent conduct that indicates a serious danger to society, has served a prior prison term, and was on probation or parole at the time the crime was committed. The list in rule 4.421(b) also includes facts that the defendants prior convictions are numerous or of increasing seriousness, and that the defendants prior performance on probation or parole was unsatisfactory.

At the sentencing hearing, the trial court granted defendants motion to dismiss the burglary offense and invited argument on an appropriate sentence for defendant on the methamphetamine-related offenses in light of defendants probation violation. Defense counsel argued defendant should receive credit for time served. The prosecutors argument consisted of stating that the witness at the trial on the burglary offense was extremely credible. Immediately after the trial court denied defense counsels request to terminate a restraining order that had been put in place prohibiting defendant from contacting the victim involved in the burglary offense, the court stated, [d]efendant is sentenced as follows: [] Defendant was on parole at the time of this event. The court therefore select[ed] the aggravated term of three years in state prison on count 1, [Health and Safety Code section] 11377[, subdivision] (a).

The trial court did not explain what it meant by the phrase this event. The courts comment that [d]efendant was on parole at the time of this event could be construed as imposing the upper term sentence because defendant was on parole at the time he committed the methamphetamine‑related offenses. Our record does not show defendants parole status when he committed the methamphetamine‑related offenses; this state of the record was confirmed by the parties at oral argument. It is possible, however, notwithstanding the records silence on this point, that defendant was on parole, in light of his admissions that he had suffered a prior conviction in February 2005 for which he served a prison term of at least one year. (See Pen. Code,  3000.)

The Attorney General appears to interpret the trial courts reference to this event as defendants involvement in the subsequent burglary, and to interpret the trial courts stated basis for the upper term sentence as defendants probation status for the possession of methamphetamine offense at the time of the burglary offense. In the respondents brief, the Attorney General states, the trial court relied on the fact [defendant] was on parole at the time of the current offense. . . . Actually, [defendant] was on probation at the time. Defendants opening brief does not identify any factor relied upon by the trial court in imposing the upper term sentence and no reply brief was filed. At oral argument, defendants counsel adopted the Attorney Generals interpretation of the trial courts comments.

If the trial court intended to impose the upper term sentence for count 1 because defendants grant of probation for that offense was revoked due to his subsequent involvement in a burglary, the trial court erred. Rule 4.435(b) of the California Rules of Court states in part, [o]n revocation and termination of probation under [Penal Code] section 1203.2, when the sentencing judge determines that the defendant shall be committed to prison: [] (1) If the imposition of sentence was previously suspended, the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c).^[[4]] [] The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found. (Italics added; see Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2007)  46.29, p. 1479 [The court is not allowed to consider subsequent events, including events surrounding the probation violation, in choosing the term or in ordering additional punishment for enhancements found to be true].)

Furthermore, none of the circumstances in aggravation listed in rule 4.421 of the California Rules of Court supports the imposition of an upper term sentence for a crime because the defendants grant of probation for that crime was later revoked due to his or her subsequent illegal activity. (See, e.g., Cal. Rules of Court, rule 4.421(b)(4) [circumstance in aggravation includes fact [t]he defendant was on probation or parole when the crime was committed], italics added.) It is true that rule 4.421 does not purport to contain an exhaustive list of facts consisting of circumstances in aggravation sufficient to justify an upper term sentence. Rule 4.421(c) states that other factors that may be considered are facts statutorily declared to be circumstances in aggravation. Unsurprisingly, no party has cited any legal authority showing that an upper term sentence may be imposed for an offense because the defendants conduct resulted in the revocation of the defendants probation for that same offense. As discussed ante, rule 4.435 expressly prohibits a sentencing court from considering events occurring after probation when imposing sentence following revocation of probation.

Rule 4.420(e) of the California Rules of Court requires, [t]he reasons for selecting one of the three authorized prison terms referred to in [Penal Code] section 1170[, subdivision ](b) must be stated orally on the record. We conclude the record is unclear as to the trial courts reason for selecting the upper term sentence in this case. We remand the matter to the trial court for resentencing. On remand, the trial court shall resentence defendant consistent with Cunningham, supra, 549 U.S. __ [127 S.Ct. 856]) as well as the California Supreme Courts recent decisions in People v. Sandoval, supra, 41 Cal.4th 825 and People v. Black (2007) 41 Cal.4th 799.

DISPOSITION

The judgment is affirmed and the matter is remanded for resentencing.

FYBEL, J.

WE CONCUR:

OLEARY, ACTING P. J.

IKOLA, J.

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[1] In light of our reversal of the judgment and remand to the trial court for resentencing, we cite to the current version of the California Rules of Court in this opinion. The portions of the rules cited herein have not been substantively changed in any manner relevant to this appeal since defendant was sentenced.

[2] Defendant does not challenge in this appeal the trial courts finding that he violated the terms of probation for the methamphetamine-related offenses.

[3] We reject the Attorney Generals contention defendant forfeited the right to make this argument on appeal by failing to raise it in the trial court. Recently in People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4, the California Supreme Court rejected a similar argument, stating the claim was not forfeited. An objection in the trial court is not required if it would have been futile. [Citation.] As the Attorney General concedes, our decision in Black I [People v. Black (2005) 35 Cal.4th 1238] was binding on the lower courts until it was overruled by the high court. [Citation.] Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request.

[4] Rule 4.433(c) of the California Rules of Court states in part: If a sentence of imprisonment is to be imposed, or if the execution of a sentence of imprisonment is to be suspended during a period of probation, the sentencing judge must: [] (1) Determine, under [Penal Code] section 1170[, subdivision ](b), whether to impose one of the three authorized prison terms referred to in section 1170(b) and state on the record the reasons for imposing that term.