P. v. Prien

Filed 9/25/07 P. v. Prien 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. W. Charles Morgan, Judge. Affirmed.

Tracy J. Dressner, 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, Sabrina Lane-Erwin and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

This is a second appeal by defendant and appellant Amy Leanne Prien (hereafter defendant). In the first appeal,^[1]we reversed defendants second degree murder conviction because it was prosecuted on an illegal theory, namely, second degree felony murder based on child endangerment as the inherently dangerous felony.^[2] We also reversed three of defendants four felony child endangerment convictions because they were not supported by substantial evidence.^[3] Because the issue was then pending before the California Supreme Court, we declined to resolve defendants challenge under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), to the upper term sentence the trial court had imposed on defendants remaining felony child endangerment conviction and a related great bodily injury enhancement. Instead, we remanded the matter to the trial court for a new trial on the murder charge, with the hope that in the interim between remand and retrial our state Supreme Court would resolve the Blakely issue.

On remand, defendant challenged the original trial judge (Judge Morgan), under Code of Civil Procedure section 170.6,^[4]and the case was assigned to Judge Magers for jury trial on the murder charge. Judge Magers declared a mistrial on that charge after the jury was unable to reach a verdict.^[5]

While awaiting the district attorneys decision on whether to try defendant for murder a third time, the master calendar judge determined that even though disqualified for purposes of retrial, Judge Morgan, as the original trial judge, should resentence defendant on the felony child endangerment conviction and related great bodily injury enhancement that we had affirmed in defendants first appeal. Over defendants objection, Judge Morgan resentenced defendant on that child endangerment conviction and enhancement by imposing the same sentence he had originally imposedthe upper term sentence of six years in state prison on the felony child endangerment conviction and an additional four years on the great bodily injury enhancement. Later that day, Judge Magers approved a negotiated plea that disposed of the murder chargedefendant pled guilty to a charge of involuntary manslaughter, and the district attorney dismissed the murder charge. In accordance with the plea agreement, Judge Magers sentenced defendant to serve four years in state prison, and stayed execution of that sentence under Penal Code section 654.

In this appeal, defendant raises two challenges. First, defendant contends that the sentence Judge Morgan imposed on her felony child endangerment conviction is void because he was disqualified from taking any further action in the case and therefore lacked jurisdiction to sentence defendant. Second, defendant contends the upper term sentence Judge Morgan imposed violates her federal constitutional right to have a jury decide all questions of fact, a right the United States Supreme Court initially articulated in Blakely, supra,542 U.S. 296, and eventually applied to Californias determinate sentencing scheme in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]. We conclude, for reasons we now explain, that we need not address defendants claim under section 170.6 because Judge Morgan did not actually resentence defendant. We further conclude that any violation of defendants right to a jury was harmless beyond a reasonable doubt. Therefore, we will affirm.

DISCUSSION

Section 170.6 authorizes any party in a civil or criminal action to disqualify the judge assigned to the case by making a motion supported by an affidavit that states the judge is biased against the party, the partys interest, or the partys attorney such that the party cannot, or believes he or she cannot, get an impartial trial. ( 170.6, subd. (a)(1).) Section 170.6 also specifies the applicable time limitations and procedures, and as pertinent to this appeal, states, A motion under this paragraph may be made following reversal on appeal of a trial courts decision, or following reversal on appeal of a trial courts final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter. ( 170.6, subd. (a)(2).) A judge disqualified under section 170.6 is precluded from trying any civil or criminal action or special proceeding of any kind or character [or] hear[ing] any matter therein that involves a contested issue of law or fact. ( 170.6, subd. (a)(1).)

Defendant contends that because he was disqualified, Judge Morgan lacked jurisdiction to resentence her on the felony child endangerment count we affirmed in defendants original appeal. The disposition in that appeal did not specify what if any action the trial court should take on remand regarding the sentence imposed on count 2, defendants conviction for felony child endangerment and the related great bodily injury enhancement. Instead, we incorrectly concluded that our reversal of the murder conviction would necessitate resentencing defendant on the affirmed charged. We premised our conclusion that resentencing would be necessary on two assumptionsfirst, that the district attorney would in fact retry defendant for murder on the valid legal theory of implied malice, and second, that the jury would reach a verdict in that trial. As a result of those assumptions, we declined in defendants first appeal to address her challenge under Blakely, supra, 542 U.S. 296 to the upper term sentence the trial court had imposed on the felony child endangerment conviction in question.

Ordinarily, because the trial court had stayed execution of the sentence imposed on the felony child endangerment conviction, our reversal of defendants murder conviction in the original appeal would have caused the stay to be lifted, or dissolved, and defendant would then serve the prison term the trial court had originally imposed on that conviction. The trial court, however, was uncertain what action if any was necessary on remand with respect to resentencing on the affirmed counts because we had not made that clear in the disposition. In an abundance of caution, the trial court resentenced defendant to the sentence it had imposed originally but had stayed under Penal Code section 654. In other words, Judge Morgan did nothing more than dissolve or lift the Penal Code section 654 stay, an act that would automatically have occurred were it not for the uncertainty we caused by failing to specify a disposition on that count in defendants original appeal.

Although cloaked in sentencing garb, when exposed and examined, the trial courts act was in fact ministerial and therefore was not precluded by the earlier section 170.6 disqualification. (First Federal Bank of California v. Superior Court (2006) 143 Cal.App.4th 310, 313 [Where the task to be performed on remand is merely ministerial in nature, there is no retrial within the meaning of the statute].) Because we conclude that Judge Morgan did not resentence defendant on remand, we need not resolve the question of whether he was disqualified from resentencing defendant on the affirmed conviction because he had disqualified himself under section 170.6 from presiding over the retrial on another charge that was reversed on appeal.

The remaining issue is the one we avoided in defendants original appealwhether the upper term sentence on defendants felony child endangerment conviction is based on facts other than those found by the jury and therefore violates defendants right under the Sixth and Fourteenth Amendments to the United States Constitution to have a jury determine all questions of fact.^[6] At the time of defendants initial appeal, the answer to that question was unclearthe Supreme Court had decided Blakely, supra, but the issue of whether Californias determinate sentencing law violates the right to a jury trial was pending before our state Supreme Court. By the time defendant was sentenced on remand, the California Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238 (Black I), in which the court held that Californias determinate sentencing law did not violate the right to a jury trial guaranteed under the United States Constitution. The United States Supreme Court held otherwise in Cunningham v. California, supra, 127 S.Ct. 856 (Cunningham), decided while this second appeal was pending. In Cunningham, the Supreme Court held that Californias determinate sentencing law runs afoul of 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, 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.)

The Attorney General argues first that defendant forfeited this claim of sentencing error because she did not raise it when she was resentenced, and even if the issue is preserved, the upper term sentence does not run afoul of Cunningham because in finding defendant guilty of felony child endangerment and finding true the related great bodily injury enhancement, the jury necessarily found that defendant inflicted great bodily injury and that the victim was particularly vulnerable, both of which are valid factors in aggravation that support imposition of the upper term sentence. Alternatively, the Attorney General contends that if Cunningham error occurred, it necessarily was harmless because a jury would have found beyond a reasonable doubt that defendants infant son was a particularly vulnerable victim, which is a valid circumstance in aggravation. (See Cal. Rules of Court, rule 4.421(a)(3).)

The California Supreme Court recently decided People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), in which it rejected the Attorney Generals forfeiture claim noting that an objection would have been futile because the trial court was bound by Black I. (Sandoval, at p. 837, fn. 4.) For that reason we reject the forfeiture claim in this appeal. The court also held that although none of the aggravating factors in that case comported with the requirements of Blakely, because they were not found true by a jury or based on a prior conviction, or admitted by the defendant, the error was subject to harmless error analysis under the standard pertinent to error of federal constitutional magnitude, i.e., the so-called harmless-beyond-a-reasonable-doubt standard. (Sandoval, at p. 838.) In People v. Black (2007) 41 Cal.4th 799 (Black II), decided the same day as People v. Sandoval, the Supreme Court held that an upper term sentence does not violate the Sixth Amendment so long as one circumstance in aggravation is established in accordance with the requirements of the Sixth Amendment. (Black II, at p. 813.) By the same reasoning, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Sandoval, at p. 839.)

In this case it is undisputed that the victim of the child endangerment charge was defendants three-month-old son. Unlike other children who are victims of abuse or endangerment, an infant is entirely dependent on others to fulfill its basic needs for food, clothing, and shelter, and is equally unable to escape or evade acts of abuse or endangerment whether those acts are intentional or the result of negligence. We are persuaded beyond a reasonable doubt that a jury presented with the issue would have found beyond a reasonable doubt that defendants baby son was particularly vulnerable, a finding that in turn warrants the upper term sentence the trial court imposed on defendants felony child endangerment conviction. Therefore, we conclude that if error occurred, it was harmless beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at p. 839.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ King

J.

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^[1]People v. Prien (Sept. 21, 2005, E034846) [nonpub. opn.].

^[2]The evidence presented at trial showed that defendants infant son had died suddenly and had methamphetamine in his stomach that he most likely ingested through defendants breast milk.

^[3]These charges related to defendants other children.

^[4]All further statutory references are to the Code of Civil Procedure unless indicated otherwise.

^[5]The prosecutor also filed three misdemeanor child endangerment counts, but Judge Magers dismissed those charges on defendants motion.

^[6]The trial court originally imposed the upper term sentence in this case because in the trial courts view the crime of felony child endangerment at issue involved a high degree of cruelty and callousness on the part of defendant, a valid factor in aggravation. (See Cal. Rules of Court, rule 4.421(a)(1).) On remand, the trial court again relied on that reason.