P. v. Hallett
Filed 1/22/09 P. v. Hallett CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEROY HALLETT, Defendant and Appellant. | G039695 (Super. Ct. No. 05CF3814) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed and remanded for resentencing with directions.
William Flenniken, Jr., 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, Assistant Attorney General, Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
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Introduction
In a prior opinion, we remanded this case for resentencing because the trial court erred by failing to state the basis for its decision to impose the upper term sentence as required by rule 4.420(e) of the California Rules of Court. (People v. Hallett (Aug. 29, 2007, G037505) [nonpub. opn.].) On remand, the trial court selected the upper term sentence, citing defendant Richard Leroy Halletts prior prison terms as the basis for imposing an upper term sentence.
The record is not sufficient to support the trial courts determination defendant served a prior prison term other than the one alleged in the charging document and admitted by defendant, and for which the trial court imposed a one-year consecutive enhancement sentence. We therefore again remand to the trial court for resentencing.
Background
Defendant pleaded guilty to one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), and one count of unauthorized possession of a hypodermic needle or syringe in violation of Business and Professions Code section 4140, as charged in a felony complaint. Defendant also admitted an allegation in the felony complaint that, pursuant to Penal Code section 667.5, subdivision (b), he had been previously convicted of violating section 487, for which he served a separate prison term of one year and more and did not remain free for a period of five years of both prison custody and the commission of the [charged] felony offense.
In December 2005, the trial court suspended imposition of sentence, and placed defendant on formal probation for three years, with terms including that defendant [v]iolate no law. In January 2006, the prosecution filed a petition alleging that on January 13, 2006, defendant was arrested for first degree burglary. The prosecution recommended the trial court find defendant in violation of the terms of his probation as a result of his involvement in the burglary incident, and impose sentence accordingly.
The trial court found defendant in violation of probation and imposed the upper term sentence for the possession of methamphetamine offense. In our prior opinion, this court affirmed the judgment of conviction but remanded the matter to the trial court for resentencing because the trial court erred by failing to state the basis for its decision to impose the upper term sentence as required by rule 4.420(e) of the California Rules of Court. (People v. Hallett, supra, G037505.) We stated in our opinion that, to the extent the trial court intended to impose the upper term sentence for the possession of methamphetamine offense based on revocation of probation due to defendants subsequent involvement in a burglary, the trial court erred. (See Cal. Rules of Court, rule 4.435(b).)
At the sentencing hearing on remand, the trial court resentenced defendant to the upper term of three years for the possession of methamphetamine offense, citing defendants prior prison terms as the reason for the term to be aggravated. The court also imposed a consecutive term of one year for the prior prison term enhancement allegation under Penal Code section 667.5, subdivision (b). Defendant appealed.
Discussion
Defendant contends he was denied his constitutional rights under the Sixth Amendment to the United States Constitution when the trial court imposed an upper term sentence without a jury finding on the existence of aggravating factors or obtaining a jury waiver. We do not reach this issue because it is not sufficiently clear from the record before us whether defendant has served any prior prison term, other than the one for which the trial court sentenced him to a consecutive one‑year term.
During the pendency of this appeal, we invited the parties to file supplemental letter briefs addressing whether the record supported the trial courts decision to impose the upper term sentence, as follows: Pursuant to Evidence Code section 459, subdivision (a) and section 452, subdivision (d), this court, on its own motion, takes judicial notice of the Orange County Superior Courts file in case No. 05CF3814. The parties are invited to file supplemental letter briefs no later than October 23, 2008, addressing the following issues: [] 1. Defendant pleaded guilty to one count of possession of methamphetamine and one count of unauthorized possession of a hypodermic needle or syringe, and admitted he had been previously convicted of grand theft in 2005, for which he served a separate prison term (the 2005 prior prison term). At the resentencing hearing, the trial court imposed the upper term sentence for the possession of methamphetamine conviction, and enhanced defendants sentence by one year based on the 2005 prior prison term. The trial court stated it imposed the upper term sentence because defendant has served prior prison term. Does the trial courts record show that defendant has served any prior prison terms within the meaning of rule 4.421(b)(3) of the California Rules of Court, other than the 2005 prior prison term?[[1]] Why or why not? [] 2. If the trial courts record shows defendant has served additional prior prison terms within the meaning of rule 4.421(b)(3) of the California Rules of Court, should this court affirm defendants upper term sentence pursuant to the California Supreme Courts recent decision in People v. Towne (2008) 44 Cal.4th 63, 70‑71, in which the Supreme Court held the aggravating circumstance that a defendant served a prior prison term . . . may be determined by a judge and need not be decided by a jury? Why or why not?
Defendant submitted a supplemental letter brief stating, inter alia, the record is insufficient to show that [defendant] had served any prior prison terms within the meaning of rule 4.421(b)(3) of the California Rules of Court. The Attorney General also filed a supplemental letter brief stating that defendant had served more than one prior prison term, but not explaining how or where in the trial courts record it showed defendant had served any such prior prison terms. Instead, the Attorney General cited the prosecutors argument at the resentencing hearing, in which the prosecutor stated: This defendants history goes all the way back to 1994, replete with numerous offenses for misdemeanors. He also has felony offenses. [] November 25, 1992, he had a [Health and Safety Code section] 11350. [H]e received 90 days O.C.J. [Orange County jail], and on 3/4/93, pursuant to that case, probation was reinstated. He received a 180 day O.C.J. sentence. [] Then, on 12/03/9 probation was revoked and he received a 16‑month state prison sentence.
Based solely on that reference to the reporters transcript, the Attorney General argued in the supplemental letter brief: The record establishes that [defendant] had two prior convictions for which he served prior prison terms. The first being the November 25, 1992 conviction for a violation of Health and Safety Code section 11350, for which he was ultimately sentenced to 16 months in state[] prison, and the second being his 2005 conviction for grand theft, Penal Code section 487, for which he was sentenced to 16 months in state prison.
But the prosecutors argument alone is insufficient to support the upper term sentence; the record must support the factual basis for the argument. Other than the prosecutors argument discussed ante, the record on appeal does not show defendant served any prior prison term other than the one for which he was sentenced to an additional year in prison.
As stated in our order cited ante, pursuant to Evidence Code section 459, subdivision (a) and section 452, subdivision (d), on our own motion, we have taken judicial notice of the Orange County Superior Court file in case No. 05CF3814. But the trial courts record contains what appears to be defendants rap sheet showing defendant has been previously sentenced to one or more prison terms in addition to the prison term alleged as an enhancement in the felony complaint. That document, however, is unclear in its presentation of this information and is also unclear as to whether defendant actually served any such prison terms. Notwithstanding the opportunity to clarify the state of the record in its supplemental letter brief, the Attorney General failed to do so.
Disposition
The judgment is affirmed and the matter is remanded to the trial court to clarify the factual basis, including reference to supporting documents, for its determination defendant has served a prior prison term other than the one alleged in the felony complaint in this case, and for resentencing.
FYBEL, J.
WE CONCUR:
OLEARY, ACTING P. J.
IKOLA, J.
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[1] Penal Code section 1170, subdivision (b) provides, in part, the trial court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. (See also Cal. Rules of Court, rule 4.420(c) [The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term].)
