P. v. Atkinson

Filed 5/20/08 P. v. Atkinson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

----

In a bench trial, defendant Michael Eugene Atkison was convicted of one count of corporal injury to a cohabitant and found to have served three prior prison terms. (Pen. Code,  273.5, subd. (a), 667.5, subd. (b).)^[1]

The trial court sentenced defendant to a prison term of seven years, comprised of an upper term of four years for the corporal injury conviction and one year for each of the three prior prison terms.

On appeal, defendant contends his sentencing under section 1170, as amended in 2007 (Sen. Bill No. 40; Stats. 2007, ch. 3, 2 (hereafter SB 40)) violated the ex post facto and due process provisions of the federal Constitution. We shall affirm the judgment.

Because defendants contention raises only legal issues regarding his sentencing, a recitation of the facts is unnecessary.

Discussion

In Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), the United States Supreme Court concluded that the sentencing scheme under former section 1170 violated the Sixth Amendment (jury-trial guarantee) of the federal Constitution. Former section 1170 provided for a determinate sentencing scheme comprised of lower, middle and upper terms, and stated, as pertinent, that the court [i.e., the trial judge] shall order imposition of the middle term, unless there are circumstances [the judge finds] in aggravation [upper term] or mitigation [lower term] of the crime. (Former 1170, subd. (b); Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 866].) Based on this quoted language from former section 1170, Cunningham deemed the middle term the legally pivotal statutory maximum term, and noted that the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum [i.e., an upper term] based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant [i.e., a fact found by the judge]. (Cunningham, supra, 549 U.S. at p. ___, see id. at pp. ___-___ [166 L.Ed.2d at p. 864, see id. at pp. 865, 876].)

SB 40 amended section 1170 in response to Cunninghams suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. (Cunningham, supra, 166 L.Ed.2d at pp. 876-877; see SB 40.) SB 40 amended section 1170 so that: (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall set forth on the record the reasons for imposing the term selected . . . . ( 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, 2.)

Here, the trial court sentenced defendant on April 4, 2007, stating as pertinent:

The Court is well aware of the turmoil that the sentencing laws of California had been in since . . . Cunningham. The court has also been informed that the Governor has signed SB 40 which . . . set[s] up a sentencing range as opposed to a presumption that the mid term is the appropriate term unless aggravating circumstances are found for a[n] upper term or mitigating for a lower term. [] . . . []

The court, in light of SB 40, has conducted a balancing test and looked at various factors to determine . . . what range of sentence should be for [defendant]. The court notes . . . a serious injury was inflicted on the victim. . . . The court acquitted [defendant] on the great bodily [injury] enhancement, but that was a close call.

The court notes [defendants] significant prior record and [defendants] failure on probation and parole in the past. The court does find that this is appropriately the upper range [and] will impose a four-year [upper] sentence on the [corporal injury conviction]. And the court notes that even if the only factor considered were the prior history and the defendant in terms of his prior convictions, the upper term would be the appropriate term to be imposed in this case.

Defendant contends the trial court violated the ex post facto and due process provisions of the federal Constitution by sentencing him to an upper term pursuant to the SB 40-amended section 1170 sentencing scheme, rather than sentencing him under the Cunningham rule to the constitutionally validated middle term statutory maximum.

Our state Supreme Court, in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), rejected a similar ex post facto and due process contention, concluding that the federal Constitution does not prohibit the application of the [SB 40-] revised sentencing process . . . to defendants whose crimes were committed prior to the date of [this] decision . . . . (Sandoval, supra, 41 Cal.4th at p. 857.)

In reaching this conclusion, Sandoval noted that a law violates the ex post facto clause only if it applies to events occurring before its enactment in a manner that substantively disadvantages the offender. (Sandoval, supra, 41 Cal.4that pp. 853-854.) That is not the case with SB 40. As Sandoval explained: [T]he removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to--and would not be expected to--have the effect of increasing the sentence for any particular crime. . . . Moreover, . . . the difference in the amount of discretion exercised by the trial court in selecting the upper term under . . . former [section 1170], as compared to the [SB 40] scheme . . . , is not substantial. (Id. at p. 855.)

As for due process, Sandoval explained that where the criminal statute at issue specifies the maximum sentence that may be imposed, such notice affords a defendant sufficient warning for due process purposes. (Sandoval, supra, 41 Cal.4th at p. 857.) Here, the statute under which defendant was convicted--section 273.5, subdivision (a)--specifies a maximum sentence of four years, which is the sentence defendant received.

If there is any legal quibble whether Sandoval disposes of defendants ex post facto and due process contention here, the trial court alternatively sentenced defendant to the upper term in a manner--based on defendants prior convictions--that has been deemed constitutionally valid all along and therefore did not require the new sentencing scheme provided by SB 40. As the trial court stated: [T]he court notes that even if the only factor[s] considered were the prior history and the defendant in terms of his prior convictions, the upper term would be the appropriate term to be imposed in this case. (Italics added.) The record shows that defendant, at the time of sentencing here, had 21 prior convictions (nine felonies and 12 misdemeanors). As Cunningham observed: [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. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], italics added.)

Disposition

The judgment is affirmed.

DAVIS, Acting P.J.

We concur:

HULL, J.

CANTIL-SAKAUYE , J.

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^[1] Hereafter, undesignated section references are to the Penal Code.