P. v. Miller

Filed 5/5/10 P. v. Miller CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Richard Miller entered a plea of no contest to one count of second degree murder and one count of second degree robbery. All remaining counts were dismissed pursuant to a Harvey[1]waiver. The court sentenced defendant to state prison for 15 years to life for the second degree murder, and a consecutive upper term for the robbery.

On appeal defendant challenges only the imposition of the upper term on the robbery count. We affirm the judgment because: (1) Application of the version of Penal[2] Code section 1170 in effect at the time of sentencing, but not when the crimes were committed, is not a violation of the prohibition of ex post facto laws; and (2) Even if application of section 1170 implicated the prohibition against ex post facto laws, no prejudice has been shown because the trial court would be authorized to impose the upper term based upon the judicially revised sentencing scheme formulated in Peoplev.Sandoval (2007) 41Cal.4th 825 (Sandoval), and the court gave no indication whatsoever on the record it would impose any sentence less than the upper term.[3]

Facts

1. The Murder, Attempted Murder and Robberies.

Defendant, together with Robert Thomas and Michael Mackey, planned to set up a marijuana purchase from Tomas Gonzalez and Daniel Reyes and then rob them. Thomas knew Gonzalez because they had previously been incarcerated together.

Gonzalez and Reyes agreed to deliver 12 ounces of marijuana to Thomas in Vallejo. While Gonzalez and Reyes were traveling to Vallejo, Thomas called and told them he was not going to meet them. Instead, defendant and Mackey would conduct the transaction. When Gonzalez and Reyes stated they did not want to deal with anyone they did not know, Thomas agreed to meet them in the parking lot of the Windrush Apartments. When Gonzalez and Reyes arrived, Thomas introduced them to defendant and Mackey. Then he, defendant and Mackey got into the backseat of the vehicle, and Mackey gave directions to the residence where they planned to complete the transaction.

When they arrived at the residence, Thomas got out and went inside. While the others waited in the vehicle, they discussed the drug transaction. At one point Mackey handed Gonzalez $10. Gonzalez threw the money back, telling Mackey it was not enough. Defendant and Mackey then called Thomas on a cell phone. Gonzalez and Reyes heard Mackey say:  [B]ring the two.  They became concerned because they did not know what Mackey meant. Immediately after the call, Mackey fired the gun three times into their backs. Defendant grabbed the marijuana and fled the scene with Mackey.

Despite being mortally wounded, Reyes drove away and flagged down a bus for help. The police responded, and Reyes and Gonzalez were transported by helicopter to John Muir Hospital. Reyes was pronounced dead upon arrival. Gonzalez was in a coma. When his condition stabilized he positively identified Mackey, Thomas and defendant in a photo lineup.

Mackey and Thomas were subsequently arrested at the Vallejo Inn. Mackey admitted participating in planning the robbery. He stated Thomas claimed Reyes and Gonzalez would be easy targets. According to Mackey, while they were sitting in the backseat waiting for Thomas, defendant handed him a small semiautomatic gun and bumped him with his shoulder. Mackey interpreted this as a warning Reyes and Gonzalez had a gun, and were going to turn the tables and rob Mackey and defendant. Mackey fired a shot toward the steering wheel and believed he hit the driver. He then placed the gun on top of the duffle bag containing the marijuana and fled. While he ran, he heard one more shot. Defendant came running after him. Defendant was playing with the gun and almost shot Mackey in the back. Thomas picked them up, and they divided the stolen marijuana in the motel room. Defendant and Thomas then left with the gun and the duffle bag.

Thomas, in turn, admitted setting up the robbery, but stated he did not want to be present. He received a third of the stolen marijuana, sold some right away, and smoked some with defendant. Thomas helped wipe down the gun, and gave defendant a ride to Richmond. Defendant was planning to sell his portion of the marijuana in Richmond and give a share to the person who supplied the gun as payment for the bullets.

The day after Mackey and Thomas were arrested, defendant went to the police department. He denied any knowledge of the incident until the police informed him Mackey had implicated him, and Thomas also was cooperating. Defendant finally admitted involvement. He stated Thomas told him Reyes and Gonzalez were suckers and would not retaliate. The plan was for Mackey and defendant to steal the marijuana and run away. Thomas was to get a car and pick them up. Mackey had the gun in his hand during the drug transaction, and defendant could see he was trying to pull the trigger, but the safety was on. When Mackey released the gun safety, defendant grabbed the marijuana and fled on foot. As defendant ran, he heard three gun shots and saw Mackey trying to catch up with him. As they ran through the park, defendant told Mackey it was not necessary to shoot Reyes and Gonzalez, and he hoped neither was dead. Neither Reyes nor Gonzalez had done anything to provoke the shooting. Mackey acted like he wanted to shoot them, and defendant knew Mackey was going to fire the weapon as soon as he succeeded in releasing the safety. When the three of them met to divide the marijuana defendant felt the others got a larger share.

Defendant was initially deceptive about how he acquired the gun and how it was disposed of after the shooting. Eventually he admitted Thomas told him to get a gun for the robbery because Mackey already had one. Defendant ended up giving the gun to Mackey because he turned out not to have one after all. Mackey handed the gun back to him as they fled, and defendant accidentally fired. Defendant also wiped it down after the shooting and returned it to the supplier. The gun supplier was angry defendant had used bullets in a crime because the gun could be traced back to the supplier. Defendant denied he paid the supplier for the used bullets with some of the stolen marijuana. When asked, defendant expressed regret, and stated he did not want anything to happen to his small child.

2. The Plea and Sentencing.

The District Attorney of Solano County charged defendant, Thomas, and Mackey with four felony counts: (1) the murder of Reyes ( 187, subd. (a) [count 1]); (2) second degree robbery of Reyes ( 211 [count 2]); (3) attempted murder of Gonzalez ( 664, 187, subd. (a) [count 3]); and (4) second degree robbery of Gonzalez ( 211 [count 4]).

After the court granted defendants motion to sever his trial, defendant reached a negotiated disposition and pled no contest to counts 1 and 4.[4] The prosecutor sought a sentence of 15 years to life on count 1, and a consecutive sentence consisting of the midterm on the robbery count. The probation department recommended the upper term of five years on the robbery count. Defense counsel did not challenge imposition of a consecutive term for the robbery, but did argue for the low term based upon defendants youth, lack of sophistication, and absence of any prior criminal record. Defense counsel acknowledged defendant procured the gun, but argued he did not expect or want the shooting to occur. Defense counsel also argued defendant had admitted his guilt early.

The court stated it was intimately familiar with the facts of this case because it had presided over the trials of Mackey and Thomas. This was an offense, a crime that should never ever have occurred, and it would not have occurred, except that we had three individuals who let their petty greed, and complete disregard for the welfare of other people, [prevail over] the well-being and the very lives of other people. The court noted defendant not only brought the gun to the party here, but he brought a loaded gun. He complained afterwards that the person he got the gun from was holding him responsible for having three shots fired. That was his big remorse that he showed early on in the tape, his concern, not about what happened to these individuals, but the fact that he was going to have to pay for the three shells. . . . This is as cold as it can be.

In response to the defense argument in support of the lower term, the court acknowledged defendant did not initiate the plan, but noted he nonetheless readily agreed to it. And how anyone can say that you [do] not expect this to happen, when you bring a loaded gun to a drug ripoff, [it] is what essentially was intended. The court observed the reason people bring guns in theses circumstance is because they know. . . if they are not armed and able to shoot, and presumably kill somebody, they might get shot and killed. The court also stated defendant took advantage of the fact Gonzalez and Reyes were not on guard because they thought they knew Thomas. Moreover, defendant showed minimal remorse, and primarily only because he got caught. Finally, although defendant did acknowledge wrongdoing and accepted a plea, the court did not consider this a mitigating factor because he received a great benefit, as result of the plea.

The court concluded it saw no reason to impose anything less than the upper term . . . . It stated the victims were particularly vulnerable, there was substantial planning and the violent conduct created a very serious danger to society. The court further noted these factors were balanced only by defendants lack of any prior record. It concluded it would impose the upper term . . . for the robbery of five years . . . making the aggregate . . . term . . . 20 years to life.

Analysis

1. Summary of Legislative Amendments to Section 1170 and the Judicial Remedy Created in Sandoval.

The sentencing took place on October 28, 2008, for crimes defendant committed on October 17, 2006. When defendant committed the offenses the version of section 1170, subdivision (b), then in effect provided for a presumptive middle term of imprisonment.

By now the history of changes to the California determinate sentencing law (DSL) made after defendant committed the crimes in this case is well known. We therefore need not review that history in great detail. In brief, the United States Supreme Court, in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), held the DSL violated the Sixth Amendment right to a jury trial because it allowed a judge to impose a sentence above the statutory maximum based upon aggravating facts, other than a prior conviction not found by a jury.

By the time defendant was sentenced, both the Legislature and the California Supreme Court had acted to address the defects identified in Cunningham. On March 30, 2007, the Governor signed into law Senate Bill No. 40 (SB 40). (Stats. 2007 ch. 3,  3.) SB 40 amended section 1170, subdivision (b) to remove the statutory middle term presumption. As amended, section 1170, subdivision (b) now provides: 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 select the term which, in the courts discretion, best serves the interest of justice. The court shall set forth on the record the reasons for imposing the term selected . . . . ( 1170, subd. (b).) The amended version became effective on March 30, 2007. (Stats. 2007, ch. 3, 2.)

On July 19, 2007, also in response to Cunningham, the California Supreme Court in Sandoval, supra, 41 Cal.4th 825, held in light of SB 40 it was unnecessary to judicially reform the DSL with respect to all future cases. (Sandoval, at p. 849.) It did, however, create a judicial remedy for cases in which the defendant had been sentenced to an upper term prior to the effective date of the changes made by SB 40 based upon facts, other than a prior conviction, not found by a jury or admitted by the defendant and in which the error could not be found harmless. In such cases, the Supreme Court rejected the suggestion that on remand the court must hold a jury trial on aggravating sentencing factors. (Sandoval, at pp. 848-852.) Instead, the court adopted a remedial interpretation (id. at p. 857) to allow the sentencing court, on remand, to follow essentially the same procedure the Legislature had adopted in SB 40. (Sandoval, at pp. 832, 852.) The court in Sandoval held application of its judicially revised sentencing procedure on remand to resentencing for crimes committed before the date of its decision did not violate the proscription against ex post facto laws or a defendants right to due process. (Id. at pp. 855-857.)

2. Application of Section 1170 As Amended by SB 40Did Not Violate the Prohibition Against Ex Post Facto Laws.

Defendant acknowledges that by the time the court sentenced him the amendments enacted by SB 40 had taken effect and the Supreme Court in Sandoval, supra, 41 Cal.4th 825, had created a judicial remedy allowing for resentencing in conformity with the amended statutory procedure in those cases where the defendant had been sentenced to an upper term under the prior version. He nonetheless argues application of the SB 40 amendments to sentencing for crimes committed before their effective date violates the constitutional prohibition of ex post facto laws because Sandoval only permits the application of the judicially revised procedure in cases remanded for resentencing. He argues application of the legislatively revised sentencing procedure enacted by SB 40 that was in effect at the time of his sentencing, but not when he committed the crimes, is a violation of the constitutional prohibition of ex post facto laws. To avoid this ex post facto violation, he argues the court had to sentence him under the prior version of section 1170, subdivision (b), wherein the court would violate his due process and Sixth Amendment right to a jury trial by imposing the upper term for the robbery based upon facts not found by a jury or admitted by defendant. He therefore concludes he is entitled to a remand for resentencing, and that on remand he must be allowed to invoke his right to a jury trial on any aggravating sentence factors.

The court in Sandoval, supra, 41 Cal.4th 825, did not explicitly resolve the question whether the prohibition against ex post facto laws would be violated by the application ofSB 40 to crimes committed before its effective date. Nonetheless, its analysis of whether application of the judicially revised procedure it adopted would violate the prohibition of ex post facto laws provides clear guidance on the issue because the judicially revised procedure it adopted is substantively identical to the changes enacted by SB 40. (See People v. Smith (2002) 95 Cal.App.4th 283, 300 [dicta of the California Supreme Court carries persuasive weight and should be followed where it demonstrates . . . compelling logic. ].)

As the court explained in Sandoval, whether a change in the law that could have some effect on a defendants term of imprisonment violates the prohibition against ex post facto laws is a matter of degree, and depends on the significance of [the laws] impact. (Sandoval, supra, 41 Cal.4th at p. 854.) The court discussed and distinguished Miller v. Florida (1987) 482 U.S. 423 (Miller). (Sandoval, at p. 854.)

In Miller, Florida had established a sentencing scheme involving calculation of a score based upon the current offense, the defendants prior record and legal status at the time of the offense, and the injury inflicted on the victim. The statutory scheme prescribed a presumptive sentence range for each score. If a trial court imposed a sentence within the presumptive range, it was not required to provide reasons for its decision, and the sentencing decision could not be reviewed. A trial court could only deviate from the presumptive range if clear and convincing evidence warranted such a departure. If the trial court imposed a sentence outside the presumptive range, it was required to provide a statement of reasons, and the sentencing decision was reviewable on appeal. (Miller, supra, 482 U.S. at pp. 425-426.) When the defendant in Miller committed his sex offenses, he would have been subject to a presumptive sentence range between three and one-half years and four and one-half years. (Id. at p. 424.) By the time of his sentencing hearing, however, the law had been changed to increase the presumptive range for an offender with his score to a term between five and one-half years and seven years. The trial court imposed a seven-year term in accord with the sentencing scheme in effect at the time of sentencing. (Ibid.) The United States Supreme Court held application of the change in Floridas sentencing scheme to an offense committed before the date the new guidelines became effective violated the constitutional prohibition against ex post facto laws because no feature of the revised sentencing scheme could have been considered ameliorative, and it was undisputed that the presumptive range of punishment had been increased for the purpose of punishing sex offenders more heavily. (Id. at pp. 431-434.)

The California Supreme Court rejected Sandovals attempted analogy to Miller. Sandoval argued that, like the defendant in Miller, she would be disadvantaged by application of the judicially revised scheme because she would lose the benefit of section 1170s requirement that the middle term be imposed in the absence of any aggravating or mitigating circumstances, just as the defendant in Miller would have lost the benefit of a lower presumptive range. (Sandoval, supra, 41 Cal.4th at p. 854.) The court 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 toand would not be expected tohave the effect of increasing the sentence for any particular crime. Indeed, as applied to cases such as this one, in which defendant already has been sentenced to the upper term under the version of the DSL in place at the time she committed the offense, application of the revised sentencing scheme never could result in a harsher sentence and affords the defendant the opportunity to attempt to convince the trial court to exercise its discretion to impose a lower sentence. To the extent the removal of the requirement that the middle term be imposed in the absence of aggravating or mitigating circumstances may be viewed as granting the trial court greater discretion to impose the upper term, the revision would afford the court an equally increased discretion to impose the lower term. Moreover, . . . the difference in the amount of discretion exercised by the trial court in selecting the upper term under the former DSL, as compared to the scheme we adopt for resentencing proceedings, is not substantial.^[[5]] In contrast, a sentencing judges discretion to depart downward from the presumptive sentencing range under the Florida scheme considered in Miller was substantially limited. (Id. at p. 855.) [6]

For similar reasons to those identified in Sandoval, we conclude application of the sentencing procedure enacted by SB 40 in defendants case does not reflect a degree of change in the law similar to the change in Miller. Nothing in SB 40 changed or increased the existing range of punishments for robbery. SB 40 merely eliminated the presumption directing imposition of the middle term in the absence of a trial courts factual findings of aggravating or mitigating circumstances. SB 40 was not intended to and did not have the effect of increasing the sentence for any particular crime. To the extent the removal of the requirement that the middle term be imposed in the absence of aggravating or mitigating circumstances may grant the trial court greater discretion to impose the upper term, the revision affords the court equally increased discretion to impose the lower term. Therefore, under SB 40 the trial court could have exercised greater discretion to sentence defendant to a lower term, and defendant unsuccessfully advocated for that choice. SB 40 amounts to no more than a change in the procedural avenues by which a court may reach its final sentencing decision. Unlike the situation presented in Miller, a sentencing judge applying SB 40 has discretion to depart downward from what might be considered the norm, or middle term. (Sandoval, supra, 41 Cal.4th at p. 855.) [7]

Moreover, although Sandoval did not specifically hold SB 40, by its terms, could be applied to a defendant whose crimes were committed prior to the amendment, the court held that it is appropriate for resentencing in such cases to proceed under the procedure proposed by the Attorney General and adopted independently by the Legislature. (Sandoval, supra, 41 Cal.4th at p. 846.) It would make no sense to conclude a defendant could not be sentenced in the first instance pursuant to SB 40 if his crimes were committed prior to the amendment, but that, on remand for resentencing, the same defendant could be sentenced pursuant to SB 40. Whether imposing sentence in the first instance, or on remand for resentencing, we conclude application of the sentencing procedure enacted by SB 40 that was in effect at the time of sentencing to a crime committed before SB 40 was enacted did not violate the constitutional prohibition against ex post facto laws. (See Sandoval, at p. 846.)[8]

3. Defendant Has Not Shown Prejudice, in Any Event.

Even if we concluded the trial court could not sentence appellant under SB 40 without violating the constitutional proscription against ex post facto laws, such error would not require reversal and remand for resentencing. In considering purported error of constitutional dimension, we must determine whether it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) That standard is met here because even if we remanded for resentencing, the remedy would not be a jury trial and resentencing under the prior version of the DSL. Rather, on remand, the trial court would be authorized to impose the upper term based upon the judicially revised sentencing scheme formulated in Sandoval. Defendants assertion that Sandovals judicial reformation of section 1170 cannot be applied to him because it would violate his right to due process and the constitutional prohibition against ex post facto laws is wholly without merit and fails for the very reasons stated in Sandoval. (Sandoval, supra, 41 Cal.4th at pp. 854-855; see also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, absolutely nothing in the record suggests a resentencing in accordance with the judicially revised procedure adopted in Sandoval would result in a sentence different than the sentence the trial court imposed following the procedure enacted by SB 40. We will not reverse for further proceedings when to do so would be a useless and futile act and would be of no benefit to appellant. (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365.)

Disposition

The judgment is affirmed.

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Banke, J.

We concur:

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Marchiano, P. J.

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Dondero, J.

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[1]People v. Harvey (1979) 25 Cal.3d 754.

[2] All further statutory references are to the Penal Code.

[3] We therefore do not reach the questions of whether defense counsel forfeited any right to a jury trial or rendered ineffective assistance by failing to object to the courts reliance on aggravating factors not found by a jury.

[4] In the meantime Mackey went to trial, and the jury found him guilty of first degree murder and attempted murder, and convicted him of the two robberies. Mackey was also charged with firearm enhancements pursuant to section 12022.53, subdivisions (b), (c) and (d), and with these enhancements, his sentence was 75 years to life. Thomas went to trial, as well, and the jury convicted him of the same crimes. Thomas had not yet been sentenced when defendants probation report was prepared, and the record does not indicate the sentence he received.

[5]One of the reasons the court found it appropriate to judicially reform the DSL in conformity with the changes made by SB 40 was that in practical terms, the difference between the pre-Cunningham provision of the DSL enacted by the Legislature and a statutory scheme in which the trial court has broad discretion to select among the three available terms is not substantial. It seems likely that in all but the rarest of cases the level of discretion afforded the trial court under the Attorney Generals proposal would lead to the same sentence as that which would have been imposed under the DSL as initially enacted. (Sandoval, supra, 41 Cal.4th at p. 850.)

[6] Defendant, in his reply brief, suggests the reasons given in Sandoval for distinguishing Miller are flawed because the court overlooked or glossed over the effect of a related revision to California Rules of Court, rule 4.420(b) that eliminated the provision specifying imposition of the upper term is justified only if the circumstances in aggravation outweigh the circumstances in mitigation. (Italics omitted.) The Sandoval court was well aware the Judicial Council had amended the California Rules of Court, including rule 4.420, to conform to the changes enacted by SB 40. (See Sandoval, supra, 41 Cal.4th at pp. 846-847.)

[7]Sandoval also held there is no due process problem with sentencing a defendant under the judicially reformed DSL, even if the defendant committed the crime before the date of its decision because the defendant had sufficient notice for due process purposes of the maximum sentence. (Sandoval, supra, 41 Cal.4th at p. 857.) Here, in addition to the notice provided by the Penal Code, the court advised defendant of the maximum when he entered the plea.

[8] As best we understand it, defendants argument is only that application of SB 40 violated the constitutional prohibition of ex post facto laws. Although he does describe the application of SB 40 as retroactive, he does not explicitly rely upon section 3 to support his argument SB 40 was unlawfully applied at his sentencing. Section 3 provides: No part of [the Penal Code] is retroactive, unless expressly so declared. The court in Sandoval did not reach the question whether application of SB 40 to sentencing hearings held after its effective date, to crimes committed before its effective date, would violate section 3s presumption against retroactive application of penal laws. (Sandoval, supra, 41 Cal.4th at pp. 845-846, citing Tapia v. Superior Court (1991) 53 Cal.3d 282, 287;  3.) The court did, however, strongly signal its opinion on the subject by stating it is arguable that the amendments to the DSL should be viewed as [changes in procedural law] . . . and that they are, therefore, applicable to any sentencing proceedings conducted after the effective date of those amendments. (Sandoval, at p. 845; see also Elsner v. Uveges (2004) 34 Cal.4th 915, 936-937; Tapia v. Superior Court, supra, 53 Cal.3d at pp. 287-289.) Moreover, since the court in Sandoval found no substantial difference between the pre-Cunningham provision of the DSL enacted by the Legislature and the statutory scheme enacted by SB 40, the conclusion is all but inescapable that application of SB 40 to any sentencing proceedings is a matter of procedure because SB 40 does not attach new legal consequences to, or increase liability for an event, transaction, or conduct that was completed before the statute became effective. (Sandoval, at p. 850; Elsner v. Uveges, supra, 34 Cal.4th at pp. 936-937.)