Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F05385
DAVIS, Acting P.J.
Defendant Emery Dennis Spencer was convicted on numerous counts of sexually abusing a preteen neighbor. Sentenced to state prison, defendant previously appealed his sentence. In his first appeal, among other claims, defendant contended: (1) the trial court erred in sentencing him to full consecutive terms on counts 1 and 2 because “there was insufficient evidence that the two offenses occurred on separate occasions”; (2) the trial court erred in imposing the upper term on counts 1 through 3 because “two of the three circumstances in aggravation do not apply”; (3) the consecutive sentences on all felony counts, including count 4, were unlawful because they were based on acts of mutual oral copulation that occurred at the same time; and (4) the trial court violated his Sixth Amendment rights by sentencing him to the upper term on counts 1 through 3 without submitting the aggravating factors to a jury.
In our earlier opinion we rejected all of defendant’s claims with one exception. We agreed that the trial court erred in failing to articulate the factual basis for imposing full consecutive terms on counts 1 and 2. We issued a limited remand order compelling the trial court to “state the factual basis for full consecutive sentences on counts 1 and 2.” (People v. Spencer (Mar. 21, 2006, C047178) [nonpub. opn.] (Spencer).)
Following our order, defendant filed a petition for rehearing, arguing again that the trial court erred in imposing the upper term on counts 1 through 3. We denied his petition. Defendant then petitioned the California Supreme Court, making the same arguments he made to this court. The Supreme Court denied his petition “without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 05-6551, the effect of Blakely v. Washington (2004) 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220, on California law.”
After the Supreme Court denied defendant’s petition for review, and consistent with our limited remand order, the trial court stated on the record the factual basis for imposition of full consecutive terms on counts 1 and 2. Defendant now returns to this court, not to challenge the trial court’s statement, but to argue once again that the trial court erred in imposing the sentence on count 4 to run consecutively to the sentence imposed on count 3, and in imposing the upper term on counts 1 through 3. Defendant’s first argument is barred by our earlier opinion, and his second claim is without merit. We shall affirm.
Discussion
I
A. Consecutive Sentence
Defendant contends the trial court erred in imposing the sentence on count 4 to run consecutively to the sentence imposed on count 3 because the convictions were based on an act of mutual oral copulation. Defendant made this same argument in his previous appeal and we rejected it. Defendant remains bound by that decision. (Kowis v. Howard (1992) 3 Cal.4th 888, 894 [Once an appellate court decides a cause by written opinion after the matter was fully briefed and the parties were given an opportunity for oral argument, the “law of the case” doctrine precludes relitigation of the same issue].)
Defendant also argues the trial court failed on remand to state the particular facts in support of its decision to impose consecutive sentences on counts 3 and 4. Defendant misconstrues the scope of our remand.
“In an appeal following a limited remand, the scope of the issues before the court is determined by the remand order. [Citations.]” (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397; People v. Deere (1991) 53 Cal.3d 705, 713.) This court’s remand order limited the trial court’s action to “[stating] the factual basis for full consecutive sentences on counts 1 and 2.” (Spencer, supra, C047178.) The judgment was otherwise affirmed. Hence, the trial court was not obligated to state a fact-specific, alternate basis for the sentencing decision on counts 3 and 4.
Defendant, however, contends that the following language from our opinion supports his interpretation of our remand order: “In any event, as we must remand for the court to articulate the basis for full consecutive sentences on other counts, it is free to articulate one of the alternative bases the People suggest here and satisfy the defendant’s concern about the propriety of consecutive sentencing for mutual oral copulations.” (Spencer, supra, C047178.)
This language is dicta. We affirmed the trial court’s decision to impose consecutive sentences on those convictions that may have been based on acts of mutual oral copulation, including the sentence imposed on count 4: “A trial court has discretion to determine that sex offenses occurring in the same transaction nonetheless do not represent a single period of aberrant behavior that requires concurrent sentencing under rule 4.425(a)(3), California Rules of Court. (See People v. Robinson (1992) 11 Cal.App.4th 609, 614 [argument ‘[could] be made’ that sodomy and fellatio in one transaction ‘constituted but one course of conduct,’ though trial court ‘not . . . required to accept such a construction’].) Moreover, nothing indicates the jury necessarily rested eight of its verdicts on acts of mutual oral copulation.” (Spencer, supra, C047178.) Our suggestion that the trial was “free to articulate” an alternate basis for its sentencing decision on counts 4 through 17 was not inconsistent with that ruling and did not expand the scope of our remand order.
Defendant also takes the position that his claim is properly before this court a second time because once a case has been remanded for sentencing, the trial court is free to reconsider all of its sentencing choices. Defendant misunderstands the law in this regard.
In making his argument, defendant relies on four cases: People v. Savala (1983) 147 Cal.App.3d 63 (Savala); In re Ditsch (1984) 162 Cal.App.3d 578 (Ditsch); People v. Begnaud (1991) 235 Cal.App.3d 1548 (Begnaud); and People v. Senior (1995) 33 Cal.App.4th 531 (Senior). In three of these cases the appellate court remanded the case for resentencing after vacating the judgment or setting aside a conviction. (Savala, supra, 147 Cal.App.3d at p. 69; Ditsch, supra, 162 Cal.App.3d at p. 580; Begnaud, supra, 235 Cal.App.3d at p. 1551-1552 .) In Senior, the appellate court vacated the entire sentence and “made it clear that the trial court could consider the entire sentencing scheme in restructuring the sentence.” (Senior, supra, 33 Cal.App.4th at p. 534.)
“In sentencing defendant in the first instance the trial court made an error which affected the entire sentencing scheme devised. When we ordered the court to set aside the first judgment and to resentence defendant the court was entitled to reconsider all of its sentencing choices, subject only to the limitation that defendant not be sentenced to a greater aggregate term than the first sentence.” (Savala, supra, 147 Cal.App.3d at p. 69.)
“In an unpublished opinion . . . this court affirmed Ditsch’s convictions but remanded the case on the ground that his conduct constituted assault with the intent to commit murder (§ 217) rather than attempted murder (§§ 664/187). The trial court was specifically ordered on remand to resentence Ditsch pursuant to section 217.” (Ditsch, supra, 162 Cal.App.3d at p. 580.) “With respect to the selection of an upper term as opposed to a midterm, we note that on remand ‘a trial court is entitled to reconsider its entire sentencing scheme.’ [Citation.]” (Id. at p. 582.)
“‘. . . whenever an appellate court reverses a conviction for the principal term, the trial court retains jurisdiction over the entire cause as needed to make the necessary modifications in the sentence.’” (Begnaud, supra, 235 Cal.App.3d at p. 1552, quoting People v. Bustamante (1981) 30 Cal.3d 88, 104, fn. 12.)
Thus, in each of the cases upon which defendant relies, the entire sentencing scheme was impacted by the decision of the appellate court and it was specifically before the trial court on remand. Such is not the case here.
Here, we affirmed all of defendant’s convictions and the sentence imposed on each conviction. Our remand order was narrowly limited to ordering the trial court to “state the factual basis for full consecutive sentences on counts 1 and 2.” (Spencer, supra, C047178.) The aggregate sentence was not impacted by our decision, nor was there a sentencing choice for the trial court to reconsider.
Accordingly, we find defendant’s argument without merit and conclude he cannot raise this issue a second time.
B. Upper Term
Defendant’s second argument in this appeal is that the trial court violated his Sixth and Fourteenth Amendment rights by imposing the upper term on counts 1 through 3 without submitting the aggravating factors to a jury to be proven beyond a reasonable doubt. Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435](Apprendi), and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), defendant raised this argument in his earlier appeal. At the time, however, we were bound by the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which rendered his argument meritless.
Whether defendant’s claim is properly before us a second time, in light of the United States Supreme Court’s subsequent decision in Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856](Cunningham)and the California Supreme Court’s recent decision in People v. Black (2007) 41 Cal.4th 799(Black II), the merits of defendant’s claim now warrant discussion.
At the initial sentencing, the trial court found three aggravating factors to support imposition of the upper term on counts 1-3: (1) the crimes represented planning and sophistication; (2) the defendant abused a position of trust; and (3) the crimes were violent conduct posing a danger to society. As none of these factors fall within the recidivist exception, the defendant had a constitutional right to have them submitted to a jury. (Apprendi, supra, 530 U.S. at p. 490.) It was, therefore, error for the trial court to rely on these factors in imposing the upper term.
In Washington v. Recuenco (2006) 548 U.S. __ [165 L.Ed.2d 466], the United States Supreme Court held Blakely error is not structural error requiring automatic reversal, but is subject to harmless error analysis. (Id. at pp. __ [165 L.Ed.2d at pp. 474-477].) In People v. Sengpadychith (2001) 26 Cal.4th 316, the California Supreme Court held Apprendi error was subject to the Chapman standard of prejudice. (Sengpadychith, supra, at p. 326.) We conclude Cunningham error may likewise be found harmless beyond a reasonable doubt and decide that is the case here.
Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
With regard to the trial court’s second aggravating circumstance, that the defendant abused a position of trust, we find the evidence at trial overwhelming and uncontroverted in this regard. As noted in our earlier opinion, defendant was the victim’s frequent babysitter and a friend of the victim’s father. No reasonable juror would have found that defendant did not abuse a position of trust when he repeatedly molested the victim while she was in his care.
Because we conclude, “beyond a reasonable doubt, that 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, the Sixth Amendment error properly may be found harmless.” (People v. Sandoval (2007) 41 Cal.4th 825, 839.)
Disposition
The trial court judgment is affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.