Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. NA065832, Tomson T. Ong, Judge.
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Jaime Paramo Adame, was convicted, by jury trial, for rape of an incompetent person (two counts) and oral copulation of an incompetent person (Pen. Code, §§ 261, subd. (a)(1); 288a, subd. (g)). On appeal, we affirmed his convictions but remanded for resentencing. Adame now contends the trial court committed new sentencing errors on remand.
All further statutory references are to the Penal Code unless otherwise indicate.
The judgment is affirmed in part and reversed in part.
BACKGROUND
Following Adame’s convictions, he appealed on the basis of both trial and sentencing error. In People v. Adame (Mar. 14, 2008, B193768) [nonpub.opn.], we affirmed his convictions, but vacated his 24-year sentence and remanded to the trial court for resentencing. Upon remand, the trial court resentenced Adame to a prison term of 12 years and imposed various fines, fees and assessments. Adame has appealed again, contending the trial court made new sentencing errors.
CONTENTIONS
1. The trial court erred by imposing an upper term on count 1.
2. The trial court erred by imposing a $240 penalty assessment in connection with a restitution fine.
DISCUSSION
1. Upper term was properly imposed.
Adame contends the trial court erred when it imposed an upper term sentence on count 1. Adame essentially contends the trial court violated Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] by basing the upper term on facts not found true by the jury. This claim is meritless.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], the Supreme Court held: “Other than the fact of a prior conviction, 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.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403], the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely....” (Id. at p. 1254.)
However, Cunningham v. California, supra, 549 U.S. 270, overruled Black I, holding that the middle term under the DSL is “the relevant statutory maximum” (id. at p. 293) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at p. 281.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reconsidered Black I in light of Cunningham and held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, at p. 812.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
Meanwhile, “[t]he California Legislature quickly responded to the Cunningham decision. Senate Bill 40 (2007-2008 Reg.Sess.) (Senate Bill 40) amended section 1170 in response to Cunningham’s 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. [Citations.] Senate Bill 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 select the term which, in the court’s discretion, best serves the interests of justice. 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.)” (People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Adame contends Black II was wrongly decided. We are, of course, are bound to follow that case. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Adame was resentenced on September 30, 2008, and the trial court stated its reasons for imposing the upper term. Based on the information about Adame’s adult criminal history contained in the probation report, the trial court said it was imposing the high term “based on his prior criminal past,” specifically the fact he had twice been convicted for alien smuggling. Hence, the trial court properly sentenced him in accordance with the requirements of amended section 1170, subdivision (b). The fact Adame committed the offense before the effective date of the amendment is of no consequence. (See People v. Sandoval (2007) 41 Cal.4th 825, 845-846; People v. Wilson, supra, 164 Cal.App.4th at pp. 990-992.)
Moreover, even if Cunningham had applied to Adame’s resentencing, there would have been no error. Black II held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at p. 816.) Adame does not dispute the accuracy of the trial court’s statement he had been twice convicted for alien smuggling. (See People v. Towne (2008) 44 Cal.4th 63, 76, fn. omitted [“the trial court had the authority to make a finding that defendant’s prior convictions were numerous,” and “[w]e may assume that the trial court intended by its reference to defendant’s criminal history to include” this aggravating factor].)
The trial court did not err by imposing an upper term on count 1.
2. Penalty assessment improperly imposed in connection with restitution fine.
Adame contends the trial court improperly imposed a $240 penalty assessment in connection with a $2,400 restitution fine. As the Attorney General acknowledges, this claim has merit.
Although Adame at one point refers to a second penalty assessment in connection with the imposed $2,400 parole revocation fine, the record shows that fine was appropriately stayed without any assessment being imposed. Also, Adame argues the court security fee (§ 1465.8) is not subject to a penalty assessment, but the trial court here did not impose an assessment in connection with that fee.
“Additional penalties, or assessments, are imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses. This requirement is mandated by Penal Code section 1464 and Government Code section 76000.” (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694.) “Unless the Legislature has otherwise provided,... penalty assessments under sections 1464, and Government Code section 76000 are mandatory.” (People v. Martinez (1998)65 Cal.App.4th 1511, 1521.) “[T]he imposition of a penalty assessment pursuant to Penal Code section 1464, subdivision (a) is mandatory. Trial courts are given discretion under subdivision (d) of section 1464 not to impose the penalty assessment where an inmate remains in prison and the payment of the assessment ‘would work a hardship on the person convicted or his or her immediate family.’ Otherwise, the trial court has an obligation to impose a penalty assessment. [Citation.]” (People v. Sierra, at p. 1695.)
The trial court ordered Adame to pay a restitution fine in the amount of $2,400. In addition, the trial court ordered Adame to pay “a $240 assessment and surcharge required by Penal Code section 1464 and Government Code section [76000].” However, As Adame points out, “[s]ubdivision (e) of section 1202.4 expressly bars penalty assessments on restitution fines....” (People v. Allen (2001) 88 Cal.App.4th 986, 992-993; see also People v. McHenry (2000) 77 Cal.App.4th 730, 734 [accord].) Therefore, the $240 penalty assessment will be vacated.
DISPOSITION
The judgment is affirmed in part and reversed in part. The upper-term sentence imposed on count 1 is affirmed. The $240 penalty assessment imposed in connection with the restitution fine is vacated.
We concur: CROSKEY, J., ALDRICH, J.