Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA070509. Richard R. Romero, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Robert Miller was convicted of kidnapping (Pen. Code, § 207, subd. (a)), two counts of assault with a deadly or dangerous weapon or by means likely to produce great bodily injury (§ 245, subd. (a)(1)), criminal threats (§ 422), and battery with serious bodily injury (§ 243, subd. (d)). On appeal, he identifies an error in the abstract of judgment and contends that the imposition of the upper term sentence violated his Sixth Amendment right to a jury trial. We affirm the judgment but remand the matter for correction of the abstract of judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2006, Miller and his pregnant girlfriend Teresa appeared at the Long Beach home that Natasha England (England) shared with her husband and Dennis Sanders. Miller had met England once before, when her sister introduced Miller as someone who could do car repairs for her if needed. Miller and Teresa said that they had nowhere to go and asked if they could spend the night at the house, offering to perform car repairs in return. England fed them dinner and told them they could spend the night.
The record contains no last name for Teresa.
The following morning, England’s husband left for work. England asked Miller and Teresa to leave because she needed to leave, and the housemates had a policy that no one was allowed to stay in the home when the residents were not present. When England and Sanders left the house, they gave Teresa a ride into town and left Miller standing outside the home. England and Sanders returned home soon thereafter, and found Miller standing in the driveway. Miller walked up to the driver’s side of England’s car, began to yell, and reached in through the open window, beating England’s head against the steering wheel. Using profanity, Miller demanded to know what England and Sanders had done with Teresa.
Miller entered the car, then punched England in the back of the head. He ordered her to drive and punched her in the sides of her head three or four times. As England drove, Miller took a T-shirt, rolled it up, and began choking her. He repeated, “You don’t know what I have in my pocket,” and told England that he had nothing left to lose and would kill her if she didn’t do what he wanted. At Miller’s direction, England drove to the location where she had dropped Teresa off. There, Miller told Sanders to get out and find Teresa. He then put a sharp object that felt like a knife to England’s side, telling her that he was going to kill her. Sanders returned to the car with Teresa; Miller left with her.
As a result of Miller’s violence, England’s nose was broken, her lip was cut open, three of her teeth were knocked out, and her dental bridge was broken. She was bleeding from her mouth and her nose. She required medical treatment at a local hospital because she was unable to stop the bleeding. Photos taken at the time showed England’s dislodged teeth and a bruise on her arm. She reported that she requires dental implants and surgery on her nose.
Miller was convicted of kidnapping, with the additional allegation found true that he personally used a deadly and dangerous weapon in the commission of the offense (§ 12022, subd. (b)(1)); assault by means likely to produce great bodily injury, with the allegation found true that he inflicted great bodily injury; criminal threats, with the allegation found true that he personally used a deadly and dangerous weapon in the commission of the offense (§ 12022, subd. (b)(1)); assault with a deadly weapon, and battery with serious bodily injury. In a court trial, the court found true that Miller had served a prior prison term within the meaning of section 667.5, subdivision (b).
The trial court regretfully concluded that all of the offenses were one indivisible course of conduct such that the sentences on all but the kidnapping and associated enhancements were required by section 654 to be stayed, stating, “I do wish that I could impose consecutive sentences. If there were any legal way for me to impose consecutive sentences, I would.” The trial court identified no mitigating factors and three aggravators: “There was great violence against the victim. The defendant used a weapon. He has a prior record, served a prior prison term.” The court imposed the upper term of 8 years for the kidnapping, added one year for the use of the dangerous and deadly weapon under section 12022, subdivision (b)(1), and added another year for the prior prison term under section 667.5, subdivision (b). The court imposed but stayed the sentences on the remaining counts pursuant to section 654. Miller appealed.
DISCUSSION
I. Sixth Amendment Issues
Miller argues that the trial court erred in imposing the high term sentence for kidnapping because the facts used to impose the upper term were not charged and found true by the jury. The Attorney General argues that there was no error because the trial court relied on the facts that Miller used a weapon and that he had served a prior prison term, one of which was found true by the jury and the other by the court after a jury trial waiver. The Attorney General’s argument cannot withstand even the most basic scrutiny, as both of those aggravating factors were used as the basis of sentence enhancements, and therefore could not validly be used to impose the upper term for the kidnapping. (§ 1170, subd. (b) [“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”].) The Attorney General fails to acknowledge this fact.
The trial court justified the upper term on the basis of three aggravators: “great violence against the victim,” use of a weapon, and the fact that Miller had “a prior record, served a prior prison term.” As we have noted above, the trial court could not rely on the use of the weapon and the prior prison term to impose the upper term sentence here, because those two facts were the bases for sentence enhancements imposed under section 12022, subdivision (b)(1) and section 667.5, subdivision (b). (§ 1170, subd. (b).) This leaves only the finding of great violence as a legitimate aggravator to justify the upper term. The jury was not asked to determine whether or not great violence was employed here. While the jury did find that there was great bodily injury and serious bodily injury, even serious and great bodily injury may be inflicted without great violence. Under some circumstances a jury’s findings that a defendant used a dangerous and deadly weapon in a manner likely to inflict great bodily injury could imply an additional finding that great violence had been used. We need not decide whether such an implied finding exists here or if it would avoid constitutional error under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] because, even if there was error, it was harmless under People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).
From this phrasing, it is unclear whether the trial court was referring only to the conviction that resulted in prison time and was the basis for the prior prison term enhancement, or whether the court meant to refer more generally to Miller’s prior criminal record as outlined in the probation report, which included other criminal convictions leading to probation, fines, and jail terms. The Attorney General inserts a bracketed “and” in the court’s statements, which then tends to suggest that the court was referring to both Miller’s prior prison term and his overall history, but we decline to supply words not in the transcript of the sentencing hearing to suggest clarity where there is none. While the trial court, in the exercise of its sentencing discretion, certainly could have relied on Miller’s overall criminal history as a justification for the upper term sentence, in the absence of clear indication that the court intended to do so, we cannot supply an after-the-fact justification for a sentence by interpreting its statement more broadly than the words permit. (See, e.g., People v. Fernandez (1990) 226 Cal.App.3d 669, 684 [declining to uphold sentence imposed improperly and without adequate explanation of choices simply because there were aggravating factors and no mitigating factors].)
Following Sandoval we must determine whether “the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.” While it frequently is “difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court” (id. at p. 840), this is not one of those difficult instances. Here, the jury unquestionably would have found that the crime involved great violence against the victim. Miller repeatedly bashed England’s head into the steering wheel with such force that he broke her nose, three of her teeth, and a piece of dental work in her mouth. He punched her in the head and choked her with a T-shirt. England requires surgery as a result of the attack. Even disregarding the use of a deadly and dangerous weapon so as not to use the fact of the enhancement as an aggravator, there was abundant, unchallenged evidence that the attack on England involved great violence.
The Supreme Court’s Sandoval decision, establishing harmless error review when aggravating factors are not submitted to the jury and setting forth a resentencing scheme in which the upper term sentence may be imposed on remand, implicitly rejects the argument made by Miller here that the middle term sentence is the most severe sentence that may be imposed when aggravating factors are not charged in the information. The Supreme Court did not expressly state in Sandoval whether the failure to plead aggravating factors in the information was not error or whether it was error that was harmless. We need not resolve that question, for under either understanding no reversal would be warranted here.
II. Abstract of Judgment
Miller points out, and the Attorney General agrees, that the abstract of judgment does not accurately reflect the enhancements imposed at sentencing. The abstract of judgment lists two one-year prior prison term enhancements, when in fact only one was imposed; and it fails to mention the one-year enhancement imposed for use of a deadly or dangerous weapon that was imposed by the trial court. The abstract of judgment must be corrected to reflect one enhancement under section 667.5, subdivision (b) and one enhancement under section 12022, subdivision (b)(1). The total sentence is unaffected by this change.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for correction of the abstract of judgment to reflect the trial court’s imposition of one enhancement under section 667.5, subdivision (b) and one enhancement under section 12022, subdivision (b)(1). The clerk of the superior court shall forward a certified copy of the abstract of judgment to the Department of Corrections.
We concur: PERLUSS, P. J., WOODS, J.