P. v. Schwenk



















Filed 5/8/13 P. v. Schwenk CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. ERIC SCHWENK, Defendant and Appellant.

A129685 (Humboldt County Super. Ct. No. CR-085455)

Defendant
was convicted following a second jury trial of two counts of lewd acts upon a
child (Pen. Code, § 288, subd. (a)), and admitted that he suffered a prior
conviction of the same offense for purposes of sentence enhancement pursuant to
Penal Code sections 667.51, subdivision (a), and 667, subdivisions (b) through
(i).href="#_ftn1" name="_ftnref1" title="">[1] He was sentenced to an aggregate term in href="http://www.mcmillanlaw.com/">state prison of 30 years. In this appeal he claims that double jeopardy
principles barred retrial of the prior conviction allegations, his admission of
the prior conviction was invalid, imposition of the five-year enhancements for the prior conviction under
sections 667, subdivision (a), and 667.51, subdivision (a), was error, and an
upper term for the conviction of lewd acts upon a child was
improper.

We conclude
that double jeopardy did not attach to
retrial of the prior conviction, and defendant’s admission of the prior
conviction at his second trial was knowing and voluntary. No sentencing error occurred in the
imposition of an upper term for the conviction of lewd acts upon a child, or the
five-year enhancement under 667.51, subdivision (a). The
trial court erred by imposing of a five-year enhancement under section 667, subdivision (a), as
defendant was neither charged with nor admitted that allegation. The judgment must be modified to strike the
five-year section 667, subdivision (a), enhancement. In all other respects we affirm the judgment.

>STATEMENT OF FACTShref="#_ftn2" name="_ftnref2" title="">[2]

Defendant
was convicted of lewd acts committed in 2002on Bryce B., the son of defendant’s
“girlfriend” Christie B.href="#_ftn3"
name="_ftnref3" title="">[3] Bryce was then 10 years old, and lived
primarily in Eureka with Christie and defendant. Bryce had a “very trusting” relationship with
defendant, and considered him “like a second father.” Defendant often cared for Bryce at night while
Christie worked.

One night
in 2002, Bryce was in the bedroom normally occupied by defendant and Christie,
sleeping on his side, facing away from defendant. Christie was not present. Bryce awoke to find defendant’s thumb and
forefinger touching his penis. Bryce
acted like he “was sleeping” for a couple of minutes while the touching
continued, until the alarm went off and defendant “got up and got ready for
work.” Defendant did not say anything to
Bryce, and never spoke to him about the “fondling” incident. Thereafter, Bryce “stayed away” from
defendant, although defendant did not change his behavior toward Bryce. Bryce “didn’t say anything about it” to his
mother, or anyone else.

Bryce also
testified that a few months before the fondling occurred, defendant rented a
pornographic movie that depicted “naked women” playing with “sex toys.” He and defendant watched the movie for
“awhile” in the bedroom. The same night
– although Bryce was not sure if the movie was playing – he and defendant rubbed
lotion on each other. Bryce recalled
that he was wearing pajama bottoms, but no shirt.

The two
incidents went unreported to anyone until Bryce was 14 years old, and his
father Andrew discovered that defendant was registered as a sex offender. Andrew told Christie he did not want
defendant in the same house as Bryce.
Christie then told Bryce that defendant may move out of the house,
whereupon Bryce disclosed to her that while she was at work he “had gotten into
bed” with defendant “because he was afraid of the dark.” He awoke with defendant’s “hand on his
penis.” Bryce asked Christie “not to
tell anyone.”

The next
morning Christie confronted defendant, and he told her “the same story.” Defendant explained that while he was asleep
he “had accidentally touched Bryce.”
When he awakened he was “horrified” at what occurred. He immediately told Bryce to “get out of the
bed” and leave the room. Defendant was
“sincerely upset and apologetic.” He
moved out of the house immediately. In
subsequent conversations with Christie defendant reiterated that he apologized
“for what he did.”

The
molestation was not reported or discussed with anyone else until Bryce was 16
years old and attended counseling “on an unrelated issue.” Bryce told the counselor he “was molested” by
defendant. In turn, the counselor
reported the molestation to the police.
As part of the ensuing investigation the police officers directed Bryce
to make a pretext phone call to defendant in an attempt to seek admissions from
him. In response to Bryce’s inquiry
during the recorded telephone conversation defendant stated that he was not
“trying to have sex” with the victim, and stopped when he “realized what [he]
was doing.” Defendant described the act
as a “weird show of affection.” He expressed
that he knew “it was hurtful,” and was “really sorry” he “hurt” Bryce.

Defendant
testified that he had “clear recollection” of the molestation incident. After work that day he drank beer and smoked
marijuana. He was “very much”
intoxicated when he went to bed by himself around 10:00. Bryce was “on his computer” when defendant
retired. When defendant awoke, he was
lying on his side with his hand was on Bryce’s penis. Defendant was “in shock, and “freaked out”
that Bryce was “even in there.” He
immediately removed his hand and directed Bryce to return to his own
bedroom. The act was not intended, but
just “happened.”

According
to defendant’s testimony, the “massage incident” occurred when Bryce was 13
years old, long after the “bed incident.”
Defendant recalled that Bryce offered to put lotion on his back, and
defendant agreed. Defendant then rubbed
lotion on Bryce’s back. They both had
their shirts off, but were clothed from the waist down. Defendant insisted “there was nothing sexual
about it.”

As for
watching “porn,” defendant testified that on one occasion, entirely separate
from the massage incident, he invited Bryce, who was then, “13 years old,” to
look at a movie of “Amazon women,” naked from the waist up. No sexual acts occurred in the movie. After five or ten minutes Bryce became
uncomfortable, so defendant changed the channel.

Defendant
also offered testimony that described two separate events that resulted in his
1995 conviction for child molestation. Defendant admitted that he intentionally
touched his daughter’s friend “in the private area over her pajamas,” when she
was 10 or 11 years old, and sleeping over at the house. Thereafter, but also in 1995, defendant
rolled over unintentionally and touched his daughter “in the privates,” when
she was in bed. When defendant realized
he was touching his daughter he “stopped,” and told her he “was sorry and that
it would never happen again.” As a
result of his prior conviction, defendant was incarcerated, then placed on
probation and received counseling.

Defendant’s
daughter, Rebecca W., essentially corroborated defendant’s version of the
incident with her. Rebecca testified
that one night in 1995 she crawled into bed with her mother and defendant. For less than a minute defendant placed his
hand on her genitals, then stopped.
Rebecca was not even sure defendant was awake. When defendant realized “what he had done,”
he apologized and kissed Rebecca on the forehead before she left the room. Rebecca testified that on no other occasion
did defendant engage in inappropriate conduct with her, and she was never angry
with him. Rebecca believed the touching was
an “honest mistake that he never meant to happen.”

Testimony
was also adduced by the defense from defendant’s son and a friend of
defendant’s mother that after the molestation incident Bryce did not change his
behavior, appear to be uncomfortable around defendant, or express any “bad
feelings” toward defendant. The
witnesses did not notice any inappropriate conduct by defendant directed at
Bryce.

>DISCUSSION

I. The Effect of the Judgment in
the First Trial.

Defendant
was tried twice on the charges against him.
He was charged in an information filed on October 24, 2008, with three
counts of lewd conduct on a child (§ 288, subd. (a)), along with an
allegation of a 1995 conviction of the same offense within the meaning of
sections 667.51, subdivision (a), and 667, subdivisions (b) through (i). During the first trial defendant stipulated
that he suffered the alleged prior conviction.
At the conclusion of the trial the jury found defendant guilty of one
count of lewd conduct on a child, not guilty of another count of lewd conduct
on a child but guilty of a lesser misdemeanor assault offense (§ 240), and
failed to reach a verdict on the third count.
Before sentencing occurred, the court granted a new trial due to juror
misconduct.

An amended
information filed on January 21, 2010, omitted the offense previously charged
as count three, which resulted in the lesser assault offense conviction, and
included only two counts of lewd conduct on a child, along with the prior
conviction allegation under the provisions of sections 667.51, subdivision (a),
667.6, subdivision (a), and 667, subdivisions (b) through (i). Before trial, defendant admitted that he
suffered the prior conviction, although the five-year enhancement allegation
pursuant to section 667.6, subdivision (a), was stricken on motion of the
People. Following the second trial,
defendant was convicted of the two charged counts of lewd conduct on a
child. The trial court imposed an
aggregate term of 30 years in state prison, which included consecutive terms on
the two convictions which were doubled for the prior strike, a five-year
enhancement under section 667, subdivision (a), and another five-year
enhancement under section 667.51, subdivision (a).

Defendant
argues that he was improperly charged with the prior conviction allegations in
the amended information. He claims that
he was “impliedly acquitted of the prior-conviction allegations” in the first
trial. Therefore, under double jeopardy
principles he could “not . . .
be put twice in jeopardy for the same offense” in the second trial. He also maintains that his counsel was
incompetent for failing to recognize and assert the double jeopardy prohibition
against retrial of the prior conviction following the “implied finding” during the first trial that
the enhancement allegations “were not true.”
Instead, defendant admitted the prior conviction – an admission
defendant also challenges in this appeal.


“ ‘The Fifth Amendment to the
United States Constitution provides that “[n]o person shall . . . be
subject for the same offense to be twice put in jeopardy of life or limb
. . . .” This guarantee
is applicable to the states through the Fourteenth Amendment. [Citation.] Similarly, article I, section 15, of the
California Constitution provides: “Persons may not twice be put in jeopardy for
the same offense . . . .” ’
[Citation.]” (>Stanley v. Superior Court (2012) 206
Cal.App.4th 265, 278.) “The double
jeopardy bar protects against a second prosecution for the same offense
following an acquittal or conviction, and also protects against multiple
punishment for the same offense.
[Citations.] Under both federal
and California law, greater and lesser included offenses constitute the ‘same
offense’ for purposes of double jeopardy.
[Citations.] Thus, a conviction
of a lesser included offense bars subsequent prosecution of the greater
offense.” (People v. Bright (1996) 12
Cal.4th 652, 660–661.)

However,
defendant’s contention that the double jeopardy attaches to prior conviction allegations
is contrary to a long, unwavering line of
case law. Both the United States
Supreme Court and the California Supreme Court have definitively declared that
the state and federal prohibitions against double jeopardy do not apply to
proceedings in noncapital cases to determine the truth of prior conviction
allegations, sentencing enhancements, or penalty allegations.> (Monge
v. California (1998) 524 U.S. 721, 734; People
v. Seel (2004) 34 Cal.4th 535, 542; People
v. Barragan (2004) 32 Cal.4th 236, 240–242; People v. Monge (1997) 16 Cal.4th 826, 829; People v. Jenkins (2006) 140 Cal.App.4th 805, 813–816.) > Retrial
of an alleged prior conviction is both permissible and proper. (People
v. Barragan, supra, at p. 241.) We are not at liberty nor are we inclined to
disregard or reconsider the holding of our high courts that the double jeopardy
clause does not preclude retrial on a prior conviction allegation in a
noncapital sentencing context. (>People v. Trujillo (2006) 40 Cal.4th
165, 173–174.)

We also observe that the jury made
no finding on the prior conviction allegation in the first trial. Neither the court nor the jury made a
determination that the prosecution failed to prove its case. (People
v. Seel, supra, 34 Cal.4th 535, 549–550.)
When a trial produces neither an acquittal nor a conviction, retrial may
be permitted if the trial ended “ ‘without finally resolving the merits of
the charges against the accused.’
[Citation.]” (>People v. Anderson (2009) 47 Cal.4th 92,
104; People v. Johnston (2003) 113
Cal.App.4th 1299, 1306–1307; People v.
Craney (2002) 96 Cal.App.4th 431, 441–442; People v. Salgado (2001) 88 Cal.App.4th 5, 12–13.) In the context of a motion for new trial,
unless the court rules that the evidence is insufficient as a matter of law –
which did not occur here – the ruling does not bar retrial. (United
States v. DiFrancesco (1980) 449 U.S. 117, 130–131; Porter v. Superior Court (2009) 47 Cal.4th 125, 135–136; >People v. Seel, supra, at pp. 549–550; >People v. Hatch (2000) 22 Cal.4th 260,
271.) Retrial of the prior conviction
allegation was not error. It follows
that counsel was not incompetent for failing to make an objection to retrial
that would ultimately have proved futile.
(People v. Mendoza (2000) 24
Cal.4th 130, 171.)

II. Defendant’s Admission of the Prior Conviction
Allegation.

Defendant also claims that his admission
of the prior conviction allegation in the second trial was not “voluntary and
intelligent.” Defendant focuses on the
failure of the trial court to specifically advise him of the “right to a >jury trial of the prior conviction” to
argue that his admission was less than voluntary and intelligent. He asks that we reverse the doubled terms on
counts one and two, as well as the two five-year enhancements of his sentence.

According to the record, at the
commencement of the second trial defense
counsel indicated that defendant “admits he suffered a prior conviction for
288 in Stanislaus County in 1985.” After
consultation with counsel defendant agreed that he intended to admit the prior
conviction allegations. The trial court
engaged in a rather methodical discourse related to the admission. The court asked if defendant understood that
upon admission of the prior “it’s no different than if you pled guilty to
something? That’s no longer an issue for
the jury.” (Italics added.) Following a thorough explanation of the
nature and consequences of admission of the prior conviction allegations, the
court informed defendant that to enter the admission “you must waive and give
up certain rights. You have the right to
a trial; the right to see and hear
the witnesses against you testify under oath and through your attorney to
question those witnesses; the right to remain silent and not incriminate
yourself; and the right to present a defense, that is to testify in your own
behalf, to present evidence and witnesses, and to use the court’s subpoena
power to bring evidence and witnesses before the court for your defense.” (Italics added.) Defendant indicated that no promises or
threats had been made to him, and he understood and waived his rights.

To effectuate a valid “admission
of prior felony convictions, the court
must advise the accused of the right against compulsory self-incrimination, the
right to confrontation, and the right to a jury trial. [Citations.]
The trial court also must advise the accused of the penal consequences
of admitting a prior conviction. ‘[A]n
accused, prior to the time the court accepts his admission of an allegation of
a prior criminal conviction or
convictions, is entitled to be advised: (1) that he may thereby be adjudged an
habitual criminal . . . ; (2) of the precise increase in the term or
terms which might be imposed, if any . . . ; and (3) of the effect of
any increased term or terms of imprisonment on the accused’s eligibility for
parole.’ [Citation.]” (People
v. Sifuentes (2011) 195 Cal.App.4th 1410, 1420.)

In the case before us, the sole
challenge to the admonitions by defendant is directed to the court’s explicit
reference to the right to a trial rather than a jury trial. The rule has
evolved that where the trial court failed “to provide specific admonitions of
the rights surrendered by the admission of a prior-prison-term allegation, the
validity of the admission depends not on express admonitions and waivers but on
whether the admission was ‘voluntary and intelligent under the totality of the
circumstances.’ ” (>People v. Hinton (2006) 37 Cal.4th 839,
875, fn. 12, quoting from People v.
Howard (1992) 1 Cal.4th 1132, 1178.)
“By adopting in Howard the
federal constitutional test of whether under the totality of circumstances the
defendant’s admission is intelligent and voluntary, we rejected the rule that
‘the absence of express admonitions and waivers requires reversal regardless of
prejudice.’ [Citation.] In replacing the old rule, the focus was
shifted from whether the defendant received express rights advisements, and
expressly waived them, to whether the defendant’s admission was intelligent and
voluntary because it was given with an understanding of the rights waived. After our Howard
decision, an appellate court must go beyond the courtroom colloquy to assess a
claim of Yurko error. [Citation.]
Now, if the transcript does not reveal complete advisements and waivers,
the reviewing court must examine the record of ‘the entire proceeding’ to
assess whether the defendant’s admission of the prior conviction was
intelligent and voluntary in light of the totality of circumstances.” (People
v. Mosby (2004) 33 Cal.4th 353, 361.)

Upon our examination of the totality
of circumstances we find that defendant’s waiver of rights and admission of the
prior conviction was voluntary and intelligent.
The admonition of rights was immediately preceded by an exchange on the
effect of an admission of the prior conviction upon the proceedings. The court advised defendant and his counsel
that a stipulation would not prevent the jury from hearing of the prior conviction, whereas if defendant
entered an admission, the prior conviction was “no longer for the jury to
decide.” The court repeated that if
defendant wanted “to enter those admissions,” and “do it with a full >Boykin-Tahl waiver,”href="#_ftn4" name="_ftnref4" title="">[4] then “they’re not an issue
for the jury.” After consultation with
counsel defendant agreed that he intended to admit the prior, and the court
once again reiterated that if he did so, “[t]hat’s no longer an issue for the
jury.”

In the context of the discussion of
the admission, during which the role of the jury to decide the prior conviction
allegation in the absence of an admission was emphasized, the court’s
subsequent advisement of defendant’s right to a trial rather than a jury trial
did not adversely impact his full understanding and waiver of rights. Further, at the first trial on the charges a
stipulation to the prior conviction was read to the jury, which contributes to
the inference that defendant was aware of his right to a jury trial on the
matter. Defendant’s “ ‘prior
experience with the criminal justice system,’ ” although somewhat remote
in time, also included a guilty plea after an admonishment of rights to the
1995 conviction, the same conviction which he admitted in the present case,
which further demonstrates his awareness of rights. (People
v. Mosby, supra, 33 Cal.4th 353, 364–365, citation omitted.) We conclude that the waiver and admission was
valid. (Id. at p. 365.)

III. The Section 667, Subdivision (b) Five-year
Enhancement.

Defendant complains of the
imposition of the five-year enhancement for the prior conviction under section
667, subdivision (b). He points out that
the section 667, subdivision (b), enhancement was not charged, admitted, or
found true by the jury. The Attorney
General concedes that the enhancement must be stricken, and we agree.

IV. The Section 667.51 , Subdivision (a) Five-year
Enhancement.

Defendant also challenges the
five-year enhancement imposed under section 667.51, subdivision (a), which in
2002, when the offenses were committed, specified a “five-year enhancement for
a prior conviction of an offense listed
in subdivision (b),” but also “provided that no additional term shall be
imposed under this subdivision for any prison
term served prior to a period of
10 years in which the defendant remained free of both prison custody and the
commission of an offense that results in a felony conviction.” (Italics added.) By 2010, when defendant was sentenced,
section 667.51, subdivision (a), had been amended to omit the 10-year prior
prison term wash-out provision.
Defendant contends that his sentence must comply with the version of the
statute in effect when the crimes were committed, which, he argues, required “a
prior prison term” rather than a “prior conviction” to impose the
enhancement. Defendant adds that “he did
not serve a prior prison term” for his 1995 conviction, nor did the charge
allege a prior prison term, so the enhancement pursuant to section 667.51,
subdivision (a), is an unauthorized sentence and cannot stand.

To determine the meaning of the
prior version of section 667.51, subdivision (a), “we are guided by familiar
canons of statutory construction. ‘ “[I]n construing a statute, a court
[must] ascertain the intent of the Legislature so as to effectuate the purpose
of the law.” [Citation.] In determining that intent, we first examine
the words of the respective statutes: “If there is no ambiguity in the language
of the statute, ‘then the Legislature is presumed to have meant what it said,
and the plain meaning of the language governs.’
[Citation.] ‘Where the statute is
clear, courts will not “interpret away clear language in favor of an ambiguity
that does not exist.”
[Citation.]’ ”
[Citation.] If, however, the
terms of a statute provide no definitive answer, then courts may resort to
extrinsic sources, including the ostensible objects to be achieved and the
legislative history. [Citation.] “We must select the construction that
comports most closely with the apparent intent of the Legislature, with a view
to promoting rather than defeating the general purpose of the statute, and
avoid an interpretation that would lead to absurd consequences.” [Citation.]’
[Citation.]” (>People v. Wade (2012) 204 Cal.App.4th
1142, 1148–1149.)

Although defendant takes us through
the legislative history and an explanation of the apparent purposes of former section
667.51, subdivision (a), we need not proceed beyond the plain language of the
statute to arrive at an interpretation.
In unambiguous terms the 2002 version of section 667.51, subdivision
(a), imposed a five-year enhancement for “each prior conviction” of an offense
listed in subdivision (b), not for a prior prison term served. Only the exception that prohibits imposition
of the enhancement where the defendant remained free of both prison custody and
the commission of the prior offense which resulted in a felony conviction for a
period of 10 years, was based on “prison term” served. We cannot interpret the explicit term “prior
conviction” to mean prior prison term.
The language “prior conviction” is not ambiguous, has an established
meaning distinct from a prior prison term, and controls our interpretation of
the statute. (See People v. Moore (2011) 51 Cal.4th 1104, 1122–1123; >People v. Dunbar (2012) 209 Cal.App.4th
114, 117; People v. Wade, supra, 204
Cal.App.4th 1142, 1148–1149.)

The Legislature has demonstrated the
ability to impose enhancements on an entirely separate basis for prior prison
terms served (§ 667.5, subd. (b)), but did not do so in this
instance. The
Legislature was also free to impose an enhancement for a prior conviction of enumerated
offenses, but grant an exclusion for a 10-year wash-out period that is measured
from the conclusion of a “prison term served.”href="#_ftn5" name="_ftnref5" title="">>[5] Thus, as we interpret the former statute, the
enhancement flowed from the prior conviction, but did not apply if a defendant
who served a prior prison term for the felony conviction remained free of both
custody and commission of another offense for 10 years. The section 667.51, subdivision (a),
enhancement was properly imposed.

V. The Imposition of the Upper Term.

Defendant’s final contention is that
the trial court erroneously imposed the upper term of eight years on count one
without a jury finding beyond a reasonable doubt of the truth of the
aggravating circumstances as required by the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Supreme Court decisions in Cunningham
v. California (2007) 549 U.S. 270, 274–275 (Cunningham), and Apprendi v.
New Jersey (2000) 530 U.S. 466, 490 (Apprendi). Defendant points out that when he committed
the crimes in 2002, the California determinate sentencing law (DSL) provided
for a presumptive middle term in the triad of sentencing options, with an upper
term sentence permissible only upon a finding of aggravating factors “found to
be true by the court by a preponderance of the evidence,” a sentencing scheme
found violative of the Sixth Amendment in Cunningham. While the DSL sentencing scheme was
subsequently amended to eliminate the presumptive middle term as the statutory
maximum sentence by the date of sentencing in the present case, defendant
argues that the amendments “cannot be applied” to his case “without violating
the Ex Post Facto and Due Process
clauses of the United States and California Constitutions.”

In Apprendi, the United States Supreme Court held “that, under the
Sixth Amendment, ‘any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.’ (Apprendi, supra, [530 U.S. 466,] 490.) In Blakely
v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531], the
high court extended the scope of Apprendi
by defining ‘statutory maximum’ as the ‘maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant.’ (Blakely, supra, at p. 303, italics omitted; see >In re Gomez (2009) 45 Cal.4th 650, 656
[88 Cal.Rptr.3d 177, 199 P.3d 574].)
Applying Blakely, the court
later held in Cunningham v. California,
supra, 549 U.S. 270, that
California’s determinate sentencing law did not comport with a defendant’s
Sixth Amendment jury trial right. As >Cunningham explained, ‘If the jury’s
verdict alone does not authorize the sentence, if, instead, the judge must find
an additional fact to impose the longer term, the Sixth Amendment requirement
is not satisfied.’ (Cunningham, supra, at p. 290.)
Because the aggravating circumstances necessary for imposition of an
upper term ‘depend on facts found discretely and solely by the judge’ (>id. at p. 288), the ‘statutory maximum’
prescribed in California’s sentencing scheme is not the upper term but rather
the middle term (ibid.).” (People
v. Myles (2012) 53 Cal.4th 1181, 1220.)

In response to Cunningham, by March of 2007, the California Legislature passed
Senate Bill No. 40, which amended section 1170, subdivision (b), to eliminate
the presumptive middle term, by providing: “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.” (Stats. 2007, ch. 3, § 2.) Soon thereafter, in People v. Sandoval (2007) 41 Cal.4th 825, 843–844 (>Sandoval), the California Supreme Court
judicially adopted the amendments to section 1170, and declared that the upper
term sentence is now the statutory maximum; therefore, factors which a trial
court may rely upon in imposing the upper term need not be decided by a jury
beyond a reasonable doubt because they do not increase the penalty beyond the
statutory maximum. The court also
declared that the amended version of
section 1170, subdivision (b), may be applied without constitutional
violation to all sentencing proceedings conducted after the effective date of
the amendments, even if the offense was committed prior to the effective date
of the amendments. (Sandoval, supra, at pp. 852, 857; People v. Jones (2009) 178 Cal.App.4th 853, 866–867; >People v. Miller (2008) 164 Cal.App.4th
653, 669.)

In People v. Frandsen (2011) 196 Cal.App.4th 266, 269, the defendant
was convicted for involuntary manslaughter committed in 2002, and sentenced to
the upper term of four years in 2010.
The appellant in Frandsen
contended, as does defendant here, that “the court violated [his]
constitutional right to have a jury find every fact used in imposing
punishment,” (id. at p. 278) and ex
post facto principles were violated by retroactive application of the amended
version of section 1170, subdivision (b) to his crime committed before the
reformation of the sentencing scheme to comply with Cunningham. The court in >Frandsen adhered to the binding
precedent announced in Sandoval,
which held that “ ‘the prohibition on ex post facto laws applies only to
statutory enactments, not to judicial decisions’ in upholding a trial court’s
authority to impose an upper term sentence based on facts found by the
court. [Citations.]” (Id.
at p. 279.) The court declared: “In
light of section 1170 as construed by Sandoval,
the trial court’s imposition of the upper-term sentence in 2010, after the
amendment to section 1170 and publication of Sandoval in 2007, is lawful.”
(Ibid.)

We also express our obligation and
commitment to follow Sandoval (>Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455), and conclude that the imposition on defendant of an
upper term on count one did not contravene Sixth Amendment or ex post facto
principles. (People v. Jones, supra, 178 Cal.App.4th 853, 866–867.) Thus, counsel did not render ineffective
representation by failing to object to the aggravated term.

>DISPOSITION

The five-year sentence enhancement
for the prior conviction imposed under section 667, subdivision (a) is
stricken, and the case is remanded to the trial court to





modify
the judgment and sentence accordingly. In all other respects the judgment is
affirmed.href="#_ftn6" name="_ftnref6"
title="">[6]
>

	__________________________________ Dondero, J.
We concur: __________________________________ Margulies, Acting P. J. __________________________________ Banke, J.