P. v. Myers

Filed 7/13/09 P. v. Myers CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

______________________

*Before Levy, A.P.J., Cornell, J., and Dawson, J.

On March 10, 2008, a jury convicted appellant, Gary Dale Myers, Jr., of voluntary manslaughter (Pen. Code, 192, subd. (a)),^[1]a lesser included offense of the first degree murder he was charged with, and found true allegations that Myers used a deadly weapon ( 12022, subd. (b)(1)). On April 8, 2008, the court sentenced Myers to an aggregate 12-year term, the aggravated term of 11 years on the substantive offense and a one-year arming enhancement. On appeal, Myers contends: 1) the court abused its discretion when it imposed the upper term; and 2) the court violated the constitutional prohibition against ex post facto laws when it sentenced him pursuant to section 1170, subdivision (b) as amended in 2007. We will find merit in Myerss first contention and remand the matter to the trial court for resentencing. In all other respects, we will affirm.

FACTS

Myers rented a room from Melissa Splain and Marco Gutierrez. On March 8, 2005, Myers walked into the house shaking his cell phone at Splain and asking if she had paid his cell phone bill for him. Splain replied she had not and that she was not going to pay it until he paid his rent. Myers walked past Splain and she heard Gutierrez scream, [N]o, Gary! Splain ran to the bathroom and saw Myers standing over Gutierrez swinging a crowbar. After a minute, Myers went to his bedroom and Gutierrez and Splain followed him. Myers took a sword from a rack and swung it at Gutierrez hitting him across the wrists as Gutierrez raised his arms to protect himself. Splain called the police from her cell phone. Meanwhile Myers armed himself with a shorter sword and stabbed Gutierrez numerous times. Afterwards, Myers calmly went into his bedroom and then left. Gutierrez suffered 23 stab wounds and bled to death.

Myers was detained later that day with a large wound on top of his head that was still dripping blood. An officer asked Myers what happened and Myers replied that he was hit on the head with a crowbar. When the officer stated, [O]h, thats not good, Myers replied, [I]ts my fault, I hit him first.

At Myerss sentencing hearing, the court commented as follows in imposing the aggravated term on Myerss manslaughter conviction:

As to whether there are circumstances in aggravation and/or mitigation, the [c]ourt does find as a circumstance in aggravation the finding made by the jury beyond a reasonable doubt that there was a deadly weapon used during the course of commission of the crime.

The court also makes a determination whether or not there are any mitigating factors and determines that there is one mitigating factor presented and that is the [fact] that Mr. Myers has no previous criminal record.

In evaluating whether or not the aggravating factor outweighs the mitigating factor, the [c]ourt is fully cognizant of the ramifications of the finding by the jury that a deadly weapon was used during the commission of the crime, and as reflected in the comments of [the prosecutor] the deadly weapon was used extensively, and in the [c]ourts estimation, in a way such that it does reflect a very conscious use of that weapon to accomplish a very specific goal and purpose, and that was a killing by Mr. Myers, not accidentally or incidentally to some display of the weapon, but in the way in which the weapon was used for the purpose of killing the victim in this matter.

Therefore, the [c]ourt does consider that circumstance in aggravation as being a significant and very weighty circumstance in aggravation such to the extent that the [c]ourt does determine that it outweighs the one mitigating factor, and therefore, the [c]ourt does find it appropriate and does determine that the upper term is the appropriate term, and to that end, as to count one, the [c]ourt sentences Mr. Myers to the Department of Corrections for the upper term of 11 years. That sentence is enhanced by one additional year under [s]ection 12022 [subdivision (b)(1)] , for a total fixed term of 12 years.

DISCUSSION

Imposition of the Aggravated Term

Myers contends the court relied on his use of a weapon to impose the aggravated term and that the courts error requires remand for resentencing. Respondent concedes and we agree.

Section 1170 subdivision (b), in pertinent part, states, the 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).)

It is clear from the courts sentencing comments that it relied on Myerss use of a weapon, i.e., a sword, to impose a weapon-use enhancement and the aggravated term.

Sentencing error does not require remand for resentencing unless it is reasonably probable the defendant would have received a more favorable result absent the error. (People v. Avalos (1984) 37 Cal.3d 216, 233.) The court cited only Myerss weapon use as the reason for imposing the aggravated term. Further, since the court found a mitigating circumstance, we conclude it is reasonably probable Myers would have received a shorter sentence if the court had not relied on his use of a weapon to impose the aggravated term on his manslaughter conviction. Accordingly, we will remand this matter to the trial court for resentencing.

The Retroactive Application of the 2007 Amendment

to Section 1170, Subdivision (b)

Myers contends that since he committed his manslaughter offense in 2005, the application of section 1170, subdivision (b) as amended in 2007 violated the ex post facto clauses of the state and federal Constitutions. We reject this contention.

Section 1170 subdivision (b) was amended in 2007. (Stats. 2007, ch. 3, 2.) Under the former scheme, the trial court was required to state reasons for imposing the upper or lower term, but not the middle term. [Citation.] Under the amended scheme, a statement of reasons is required even if the middle term is imposed. [Citation.] The reasons, however, no longer must include a concise statement of the ultimate facts that the court deemed to constitute circumstances in aggravation or mitigation. ([Citation.] compare 1170, subd. (b), as amended by Stats. 2007, ch. 3, 2 [[t]he court shall set forth on the record the reasons for imposing the term selected] with former 1170, subd. (b), as amended by Stats. 2004, ch. 747, 1 [[t]he court shall set forth on the record the facts and reasons for imposing the upper or lower term].) (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).)

Prior to sentencing Myers, the court asked counsel to address whether it should sentence Myers under the version of section 1170, subdivision (b) in effect prior to its amendment in 2007 or the amended version of this section. However, it never ruled on this issue, nor did it state what version of section 1170, subdivision (b) it relied on in sentencing Myers. This issue is moot in light of our decision to remand the matter for resentencing. Nevertheless, we address it because it undoubtedly will arise again on remand.

In Sandoval the court stated, A change in substantive criminal law is retroactive if applied to cases in which the crime occurred before its enactment, but a change in procedural law is not retroactive when applied to proceedings that take place after its enactment. (Sandoval, supra, 41 Cal.4th at p. 845.) Sandoval implicitly held that application of the 2007 version of section 1170, subdivision (b) in the case before it did not violate the ex post facto clauses of the state and federal Constitutions when it held that it was appropriate when resentencing on remand to proceed under the procedure proposed by the Attorney General and adopted independently by the Legislature. (Id. at p. 846; italics added.) Accordingly, in sentencing Myers on remand, the trial court should apply section 1170, subdivision (b) as amended in 2007.^[2]

DISPOSITION

The sentence is vacated and the matter remanded to the trial court for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.

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^[1] All further statutory citations are to the Penal Code, unless otherwise indicated.

^[2] Myers also contends that the court violated his right to a jury trial when it relied on his conscious use of a weapon to impose the aggravated term because the jury did not specifically find that his use of a weapon was conscious. (See, e.g., Cunningham v. California (2007) 549 U.S. 466.) Although this issue is moot because of our decision to remand this matter to the trial court, we, nevertheless, note that [t]o find a section 12022, subdivision (b) allegation true, the fact finder must conclude that the defendant himself intentionally displayed an instrument capable of inflicting great bodily injury or death in a menacing manner during the crime. [Citation.] (In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322; italics added.) Conscious use is subsumed under intentional use because an act committed intentionally must be committed consciously. By finding the arming enhancement true, the jury must also have implicitly found Myers consciously used the sword to kill Gutierrez. Thus, the record refutes Myerss contention that the court relied on a fact that was not found true by a jury to impose the aggravated term.