Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. SS02632 & SS010506.
RUSHING, P.J.
This matter comes before us for reconsideration, in light of Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 868] (Cunningham), of the propriety of the trial court’s imposition of the upper term. We will reverse the judgment as to penalty only with directions to conduct a new sentencing hearing or to modify the judgment.
Background
As noted in our previous decision, the sole question presented on this appeal is whether the trial court violated defendant’s federal right to trial by jury when it imposed the upper term of four years on a charge of possession of a weapon by a prisoner, with a consecutive 8-month sentence for making terrorist threats. (Pen. Code, §§ 4502, subd. (a); 422.) Defendant contended that under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the sentence was defective because, in selecting the upper term on the weapons count, the trial court relied on facts neither found by a jury nor admitted by defendant. (People v. Auyon (Aug. 29, 2005, H027660) [p. 2] (Auyon I).) We rejected that contention under the compulsion of People v. Black (2005) 35 Cal.4th 1238, 1244 (Black), which held that Blakely did not impede the imposition of the upper term under our determinate sentencing law (DSL). We expressed reservations about the soundness of that holding, but acknowledged our obligation to follow it under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. (Auyon I [at p. 4].)
On January 11, 2006, defendant petitioned the United States Supreme Court for a writ of certiorari. (Auyon v. California, No. 05-9332, docketing letter dated Feb. 27, 2006.) On February 20, 2007, that court granted the petition, vacated our judgment, and remanded the matter to us for further consideration in light of Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].
Discussion
I. Availability of Point on Appeal
We must first consider a contention raised by respondent which we found unnecessary to address in our previous decision: that defendant forfeited his objection to the imposition of the upper term by failing to raise it below. We reject the contention. Defendant was sentenced on the morning of June 24, 2004—the very day that Blakely, supra, 542 U.S. 296 was decided. That decision was the third one announced that day. (Journal of the Supreme Court of the United States, October 2003 Session, p. 1017.) It is likely, though not certain, that the decision was announced before the sentence here was imposed, but if so it was only by hours or minutes. Before it was announced, of course, any objection predicated on that case would have been impossible.
Assuming the decision was rendered before the sentence here was imposed, it was still only theoretically available to defense counsel, whose failure to cite it would not support a forfeiture. To conclude otherwise would smack more of niggling pettifoggery than of reasoned jurisprudence. “The requirement of predicate trial objections does not exist to impose forfeitures for their own sake but to coerce parties into litigating cases efficiently and prevent them from withholding objections for tactical reasons.” (People v. Viray (2005) 134 Cal.App.4th 1186, 1210.) The demands of efficiency cannot become an altar for the ritual sacrifice of the real function of the courts, which is the administration of justice.
Where non-evidentiary error is concerned, “the requirement of a predicate trial objection does not ipso facto deprive a reviewing court of ‘authority in the premises.’ ” (People v. Viray, supra, 134 Cal.App.4th at p.1210, quoting People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) Supposing that defendant could fairly be taxed with trial counsel’s failure to keep abreast of that morning’s legal developments, forfeiture of his objection would then constitute ineffective assistance of trial counsel because there is no conceivable tactical reason for counsel’s failure to raise the point. (See People v. Cunningham (2001) 25 Cal.4th 926, 1037.) The absurdity of applying the forfeiture doctrine would be compounded yet further if we were compelled in the name of efficiency to explore defendant’s rights via the circuitous road of his right to effective counsel when that trek would only bring us to the same destination as a straightforward consideration on the merits. We see no reason to hold defendant to a forfeiture of the federal constitutional interest now asserted by him based upon the manifestly inadvertent oversight of trial counsel.
II. Merits
In Black, supra, 35 Cal.4th at page 1244, the court held that the power of California judges to impose the upper term under the DSL is not constrained by the federal constitutional doctrine articulated in Blakely, supra, 542 U.S. 296, and associated decisions. In Cunningham, supra, 549 U.S. at pp. ___-___ [127 S.Ct. at pp. 868-871], the court rejected Black’s analysis. “Contrary to the Black court’s holding,” wrote Justice Ginsburg, “our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 871, fn. omitted.) About a month later, the high court granted certiorari in Black itself, simultaneously vacating and remanding it for reconsideration in light of Cunningham. (Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210].)
The net effect of Cunningham and the cases there discussed is that imposition of the upper term on defendant cannot be sustained unless the aggravating facts on which it rests consist of (1) prior convictions, (2) facts found by the jury, or (3) facts admitted by the defendant. Here a large number of facts potentially supporting the upper term were identified by the probation officer and the prosecutor, but the trial court’s only stated basis for imposing the upper term was “seriousness of the two domestic violence incidents as well as the weapons charge in the latter case.” In our first opinion we surmised that “[b]y ‘two domestic violence incidents,’ the court . . . intended to refer to a separately filed misdemeanor charge of corporal injury on a spouse (§ 273.5, subd. (a)), to which defendant also entered a guilty plea.” (Auyon I [at p. 2, fn. 2].) Insofar as defendant admitted a prior (or concurrent) offense, that fact was competently established for purposes of sentencing. But the court did not purport to rely, and it is doubtful that the DSL authorized it to rely, on the bare fact of conviction. (See former Cal. Rules of Court, rule 421, as amended Jan. 1, 1991.) Because it is impossible to determine from this record whether an upper term could have been imposed based upon permissible factors, we will remand with directions.
Disposition
The judgment is reversed as to penalty only. The trial court is directed to conduct a new sentencing hearing if either party requests one within 30 days after issuance of this court’s remittitur. In the absence of such a request, the court is directed to modify the judgment to reduce the sentence on count 01-A, possession of a weapon in violation of Penal Code section 4502, subdivision (a), from four years to three years; to enter judgment as so modified; and to notify correctional authorities of the modification.
WE CONCUR:
PREMO, J., ELIA, J.