P. v. Creller

Filed 9/26/07 P. v. Creller CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

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Defendant Tommy Ryan Creller pleaded no contest to numerous charges arising from two violent confrontations with his girlfriend in May 1999 (case No. 62-8604) and July 1999 (case No. 62-9657). He also admitted the additional enhancements that he had committed these offenses while released from custody and had personally inflicted great bodily injury during the July incident. Following his pleas and admissions, the court found unusual circumstances and placed defendant on probation. Over the course of the next two years, defendant admitted four probation violations. Upon his admission of the fourth violation of probation, probation was revoked and defendant was sentenced to an aggregate term of 10 years four months in prison. He appeals the imposition of the upper term on the corporal injury to a cohabitant charge and on the great bodily injury enhancement in case No. 62-9657. Because there were errors in the sentencing procedure, we shall remand for resentencing.

Relevant Factual and Procedural History^[1]

Defendant had two violent confrontations with his cohabitant. The first incident, in May 1999, resulted in charges of assault with a deadly weapon with personal use of a knife (Pen. Code, 245, subd. (a)(1), 12022, subd. (b)(1)),^[2]corporal injury to a cohabitant ( 273.5, subd. (a)), terrorist (now criminal) threats ( 422), false imprisonment by violence ( 236, 237, subd. (a)), misdemeanor battery on a cohabitant ( 243, subd. (e)(1)), and misdemeanor child endangerment ( 273a, subd. (b)). (Case No. 62-8604.) The second incident, in July 1999, resulted in charges of corporal injury to a cohabitant ( 273.5, subd. (a )), assault by force likely to produce great bodily injury ( 245, subd. (a)(1)), and misdemeanor violation of a domestic violence order with physical injury ( 166, subd. (c)(1)). The complaint alleged that defendant committed the July offenses while released from custody on the May offenses ( 12022.1), and that he personally inflicted great bodily injury ( 12022.7, former subd. (d) (now subd. (e)) during the July corporal injury and assault. (Case No. 62-9657.)^[3]

In September 1999, defendant pleaded no contest to all counts and admitted the special allegations. As part of his plea, he waived the one-year limit on county jail incarceration.

In September 1999, Dr. Eugene Roeder conducted a psychological examination of defendant. (Evid. Code, 1017.) Dr. Roeder concluded that defendant did not suffer from a severe mental disorder, nor is he a classic dual diagnosis individual who medicates a medical disorder with substances.

Although defendant was statutorily ineligible for probation, in December 1999, the trial court found unusual circumstances warranting probation. Those unusual circumstances were defendants youth and his lack of a significant criminal or juvenile record. As a condition of probation, he was ordered to serve two years of local incarceration.

In January 2001, September 2001, and January 2002, petitions were filed alleging that defendant violated his probation. On each occasion, he admitted the violation and probation was reinstated. In connection with the January 2002 petition, Drs. Roeder and C. Page Brown conducted another psychological evaluation of defendant. This time, they concluded that he is experiencing a serious and chronic psychiatric disorder that is directly related to the ongoing abuse he experienced at the hands of his father.

In December 2002, a petition was filed alleging defendant had violated his probation by being under the influence of alcohol on two occasions. Defendant admitted both allegations. Probation was revoked, reinstatement was denied, and defendant was sentenced to state prison for 10 years four months, including a four-year upper term on the corporal injury to a cohabitant charge, and a five-year term for the great bodily injury enhancement ( 12022.7) in the July incident (case No. 62-9657).

Defendant appealed that sentence, contending the trial court abused its discretion in that it failed to reinstate him on probation, failed to consider the possibility that the delay in diagnosis of his psychiatric disorder and consequent failure to arrange for appropriate treatment caused his probation violations and his failures to respond to treatment. Defendant also contended, and the People conceded, that the trial court used the wrong sentencing triad or, in the alternative, failed to state its reasons, when it imposed five years for the great bodily injury enhancement. We agreed with this last contention and sent the matter back for resentencing on the enhancement.

Defendant filed a petition for rehearing, contending the trial court imposed the upper term of imprisonment in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). The record revealed the trial court had selected the upper term based upon the increasing serious violence (Cal. Rules of Court, rule 4.421(b)(1)), and the defendants record (Cal. Rules of Court, rule 4.421(b)(2)). Because one of the reasons given for the imposition of the upper term was defendants prior criminal convictions and the rule of Apprendi and Blakely does not apply to such prior convictions, we rejected defendants contention.

On July 13, 2006, the court conducted a resentencing hearing on the enhancement and reimposed the original sentence of 10 years four months, continuing its imposition of the upper terms on both the corporal injury to a cohabitant charge and the great bodily injury enhancement in case No. 62-9657. In so doing, the court stated, Obviously, the probation department and I both were going off the five years as the perceived midterm. In imposing the sentence, Im not concerned whether its upper, middle or lower term. Im looking at the years. And if it happens to fall on the upper or lower term then, of course, I have to give my reasons. It would be my intent to impose five years. [] If that happens to be now the upper term for the enhancement, then I believe there [are] sufficient reasons stated in the record to cover that. It was in connection with the base term, but that could apply equally to the enhancement on the base term. I was looking at the number of years, not whether its upper, middle or lower term. Thats the way I sentence it. I look at the years. . . . [] In this particular case, Im going to reflect that the sentence imposed for Count One in case A, which is case number 62-9657, should be the upper term of five years. The upper term is being imposed by reason of the increasing seriousness of the defendants acts of violence in his record and the general increasing seriousness of his record. For those reasons the upper term is imposed. Defendant objected.

Following the U.S. Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), defendant appeals again. He contends the imposition of the upper term violates his constitutional rights and that his sentences on both the corporal injury charge and the enhancement must be reduced to the respective midterms.

Discussion

In Cunningham, the United States Supreme Court overruled and vacated our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I ). Under Cunningham, the trial court is precluded from finding facts or circumstances in aggravation that expose a defendant to an upper term sentence. However, the trial court may increase the penalty for a crime based upon the defendants prior convictions without submitting that question to a jury. (Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]; see Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at pp. 488-490.)

Since Cunningham, our Supreme Court has revisited this issue and held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (2007) (Black II).) Under Black II, the prior conviction exception includes not only the fact that a prior conviction occurred, but related issues that may be determined by examining the records of the prior conviction. (Id. at p. 819.) Among the recividism-related issues included within the prior conviction exception is the number and relative seriousness of the convictions. (Id. at p. 818-820.)

In this case, the trial court imposed the upper term based on the increasing seriousness of defendants acts of violence and the increasing seriousness of his record. This sentence does not violate Cunningham because the court properly relied upon defendants record of prior convictions.

Upon our review of the record, however, we have found an error with the imposition of the upper terms, which requires we remand the matter for resentencing. These problems are not related specifically to the Cunningham issues.

In December 1999, at the first sentencing hearing, defendant was statutorily ineligible for probation under section 1203, subdivision (e)(2), unless the court found unusual circumstances in which the interests of justice would be served by granting probation. Following the probation officers recommendation, the court found the interests of justice would be served by a grant of probation. The unusual circumstances the court relied on were defendants youth and lack of a significant criminal or juvenile record. (Cal. Rules of Court, former rule 413(c)(2)(iii) (now rule 4.413).)

When a defendant violates probation and probation is revoked, the sentencing judge may make any disposition of the case authorized by statute. (Cal. Rules of Court, rule 4.435(a).) If, upon revocation and termination of probation, the court determines the defendant will be committed to prison and 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). (Cal. Rules of Court, rule 4.435(b)(1).) Rule 4.433(c)(1) requires that the court [h]ear evidence in aggravation and mitigation, and determine, . . . whether to impose the upper, middle, or lower term . . . . 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 . . . . (Cal. Rules of Court, rule 4.435(b)(1), 2d par.)

Upon revocation of probation, the sentencing courts failure to consider the mitigating factors that led to the initial grant of probation is error. (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163.) In this case, at the time probation was granted, the court found defendants prior criminal record so insignificant it justified a finding of unusual circumstances to grant probation. Such a finding must be considered when sentencing defendant upon revocation of probation. (Ibid.) It is clear from the record this factor was not considered. To the contrary, the same record upon which probation was granted became the record upon which an upper term sentence was justified. We cannot see how the same record can be used to justify such disparate sentencing choices.

In addition, the record demonstrates an additional problem with the selection of the upper term. Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation. (Cal. Rules of Court, rule 4.420(b), italics added.) The record here makes clear that the court did not consider the factors in aggravation and mitigation before making its sentencing choice. Rather, the court decided on the appropriate number of years and then worked backward to justify that term. The record also makes clear that at the original sentencing, the court intended to impose the midterm sentence on the enhancement, as it mistakenly believed that five years was the midterm sentence. Based on this record, we cannot say the sentencing errors were harmless.

In light of the trial courts initial determination that defendants prior record was so insignificant as to justify a finding of unusual circumstances and a grant of probation, there is a reasonable possibility that if the trial court correctly considers its prior determination as a mitigating circumstance, it may reach a different decision. Similarly, if the court weighs the factors before arriving at a sentencing term, there is a reasonable possibility a different sentence will result. Because these errors in sentencing require that we remand the matter for resentencing, we need not reach the issues raised under Cunningham.

Disposition

The sentences on the section 273.5 charge and the section 12022.7 enhancement in case No. 62-9657 are vacated and the matter is remanded for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.

DAVIS, Acting P.J.

We concur:

MORRISON , J.

ROBIE , J.

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^[1] As relevant, portions of the factual and procedural history are taken from our previous opinion in this matter, People v. Creller (Dec. 14, 2004, C044220 [nonpub. opn.].)

^[2] Hereafter, undesignated section references are to the Penal Code.

^[3] The facts underlying the May and July 1999 incidents are not at issue and are therefore not recounted.