Opinion
No. F044512
April 26, 2005 [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 3-5 and the concurring and dissenting opinion.
Appeal from the Superior Court of Fresno County, No. F02676237-1, Wayne R. Ellison, Judge.
Heather MacKay, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
John Borrego Parras (appellant) was acquitted of second degree murder but convicted of the lesser offense of voluntary manslaughter (Pen. Code, § 192, subd. (a)) in the beating death of Raquel Lombera. Though the homicide occurred in 1989, appellant was not charged until 2002. He was convicted the following year.
Further statutory references are to the Penal Code unless otherwise indicated.
We find no merit to appellant's claims of instructional and sentencing error. We agree that he received an unauthorized fine and order it stricken. In all other respects, the judgment is affirmed.
FACTS
The badly beaten body of Raquel (also known as Rachel) Lombera was found in her apartment on September 18, 1989. Clad in only a shirt, her body lay between the couch and television. The remainder of her clothing was stacked next to the couch. She had a cut on her mouth, a large gash on her forehead, and her eyes were swollen. Her blood and teeth were spattered on the couch; blood was spattered on a picture on the wall behind her head. Pieces of a broken wooden chair were scattered about the room. Blood and hair were embedded in a portable radio found near her foot, and a telephone was nearby, with the line pulled from the wall. Six empty beer cans were found in the apartment. Ms. Lombera's car was located a short distance from the apartment complex.
An autopsy revealed Ms. Lombera suffered a compound fracture to her jaw. Four of her teeth were knocked out. She had defensive wounds on her hands and arms and 12 to 15 distinct wounds to her head. An L-shaped wound on the top of her head was consistent with an injury from the portable radio found near her body. The injury caused a brain hemorrhage and, several hours later, her death.
The case remained unsolved for 13 years, but, in February 2002, appellant was identified as a possible suspect from an artist's sketch.
Appellant was interviewed by Detective Brandon Shoemaker in 2002 in San Diego. In a taped interview, appellant admitted he had been with Ms. Lombera at her apartment in September 1989. He related that, at that time, he was a heavy drinker and suffered from "blackouts." He and Ms. Lombera worked at the same bar. They were sexually involved, but appellant's wife was unaware of the relationship.
On the night of September 16, appellant left the bar with Ms. Lombera and several others to drink beer. Later, appellant and Ms. Lombera went to her apartment to drink more beer. After they had sex on the couch, appellant told Ms. Lombera he no longer wanted to see her. Ms. Lombera threatened to tell appellant's wife about the relationship, and they began to fight. Appellant was "mad" and hit Ms. Lombera two or three times in the face. Appellant did not realize he had killed Ms. Lombera, because she was still moving when he left her apartment. Appellant took Ms. Lombera's car and drove to his stepson's apartment.
At trial, appellant testified he was an alcoholic and, at the time of the incident, drank nine to 12 beers a day. Appellant stated he had known Ms. Lombera for approximately six months. On the night in question, appellant drank several beers at home and six beers at the bar. Appellant and Ms. Lombera left the bar with two others and drank more beer. Eventually, appellant and Ms. Lombera went to her apartment, where they drank beer and had sex. Appellant told Ms. Lombera he no longer wanted to see her, and she threatened to tell appellant's wife he had been with her. Ms. Lombera went to get the phone, and appellant yanked it from the wall. Ms. Lombera hit appellant, and he hit her back. Appellant did not recall hitting Ms. Lombera with anything other than his hand, or hitting her in any way that would have been life-threatening. He did not intend for her to die. Appellant claimed not to have known Ms. Lombera died until Detective Shoemaker told him in 2002. He had been very drunk and remembered nothing else from that night.
Appellant's former daughter-in-law testified that, at the time of the incident, appellant drank daily and frequently to excess. She had witnessed a number of occasions when appellant behaved violently when drunk and then could not remember what he had done.
DISCUSSION
1. Voluntary manslaughter instructions
Appellant was charged with murder and convicted of voluntary manslaughter. He contends the trial court erred in giving an instruction on voluntary manslaughter which allowed a conviction based on a homicide committed without an intent to kill. He argues that, instead, the jury should have been instructed that voluntary manslaughter requires such intent.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) (2) Manslaughter is the unlawful killing of a human being without malice and is divided into three classes: voluntary, involuntary, and vehicular. (§ 192.) "A defendant lacks malice and is guilty of voluntary manslaughter in `limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" [citation], or when the defendant kills in "unreasonable self-defense." . . .' [Citation.]" ( People v. Blakeley (2000) 23 Cal.4th 82, 87-88 [ 96 Cal.Rptr.2d 451, 999 P.2d 675] ( Blakeley); see § 192, subd. (a).)
Prior to our Supreme Court's opinions in Blakeley and the companion case of People v. Lasko (2000) 23 Cal.4th 101 [ 96 Cal.Rptr.2d 441, 999 P.2d 666] ( Lasko), it had been held that the intent to kill was an essential element of voluntary manslaughter. (See, e.g., People v. Shannon (1996) 46 Cal.App.4th 1365, 1368-1369 [ 54 Cal.Rptr.2d 416].) In Blakeley and Lasko, however, our high court held to the contrary. Instead, voluntary manslaughter may also occur when one kills with a conscious disregard for life but no intent to kill. Following the decisions in Blakeley and Lasko, former CALJIC No. 8.40 was revised to include as a required element of the crime of voluntary manslaughter proof that "[t]he perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life. . . ." (CALJIC No. 8.40 (2001 rev.).)
Appellant contends the trial court committed prejudicial instructional error by giving the post- Blakeley/Lasko voluntary manslaughter instruction (CALJIC No. 8.40), when the charged offense occurred in 1989. Because the new version of CALJIC No. 8.40 enlarged the crime of voluntary manslaughter by not requiring an intent to kill, appellant argues, its retroactive application violated his state and federal constitutional rights to due process. Absent the erroneous instruction, he concludes, he would have been convicted of involuntary rather than voluntary manslaughter. Respondent contends the instruction as given was proper. We agree.
The defendant in Blakeley, who was charged with murder, claimed self-defense and imperfect self-defense, and was convicted of voluntary manslaughter. He contended on appeal that the trial court erred in refusing to instruct on involuntary manslaughter based on an unintentional killing done without malice because of the unreasonable belief in the need to defend against the victim. The court rejected the argument and held that "when a defendant, acting with a conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary rather than involuntary manslaughter." ( Blakeley, supra, 23 Cal.4th at p. 91.) The court went on, however, to hold that this rule could not be applied retroactively to the Blakeley defendant's case because it constituted an "unforeseeable judicial enlargement of the crime of voluntary manslaughter." ( Id. at p. 92.) As explained by the court: "[W]hen defendant killed [the victim six years earlier] this court had not yet addressed the issue of whether an unintentional killing in unreasonable self-defense is voluntary or involuntary manslaughter. But three decisions by the Courts of Appeal in this state held that such a killing was only involuntary manslaughter [citations]; no case held to the contrary. Thus, our decision today — that one who, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense is guilty of voluntary manslaughter rather than the less serious crime of involuntary manslaughter — is an unforeseeable judicial enlargement of the crime of voluntary manslaughter, and thus may not be applied retroactively to defendant." ( Ibid.)
In Lasko, the defendant was convicted of second degree murder after the beating death of his employer, which he contended occurred in the heat of passion. ( Lasko, supra, 23 Cal.4th at pp. 104-105.) The jury was instructed on murder and on the lesser included offense of voluntary manslaughter. On appeal, the defendant argued the trial court erroneously instructed that intent to kill was an essential element of voluntary manslaughter, forcing the jury to reach a murder verdict if it found no intent to kill. ( Id. at p. 106.) Interpreting section 192, subdivision (a), the Supreme Court found the plain language of the statute contained no requirement of intent to kill. Therefore, the court held that a killing in a sudden quarrel or heat of passion constitutes voluntary manslaughter whether the defendant acts with an intent to kill or, instead, in conscious disregard for human life. ( Lasko, at pp. 108-109.) The court then went on, however, to find that the defendant was not prejudiced by the erroneous pre- Lasko instruction.
Section 192, subdivision (a) reads: "Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: [¶] (a) Voluntary — upon a sudden quarrel or heat of passion."
In People v. Crowe (2001) 87 Cal.App.4th 86 [ 104 Cal.Rptr.2d 319] ( Crowe), the court reasoned that Lasko applies whether or not the offense preceded that decision — that is, it applies retroactively — because Lasko did not enlarge the crime of voluntary manslaughter in the context of a sudden quarrel or heat of passion, but merely clarified existing law. ( Crowe, at pp. 94-95.) As stated in Crowe: ". . . Lasko . . . did not `redefine' the crime of voluntary manslaughter. Instead, it simply acknowledged the exact words contained in the crime's statutory definition and gave effect to the fact that the Legislature had not included intent to kill in that definition although previous decisions had not given proper recognition to that omission." ( Crowe, supra, 87 Cal.App.4th at p. 95.)
In People v. Johnson (2002) 98 Cal.App.4th 566 [ 119 Cal.Rptr.2d 802] ( Johnson), the court suggested a way to reconcile "the seemingly conflicting commands of Blakeley, on the one hand, and Lasko and Crowe, on the other hand, regarding retroactivity." ( Johnson, at p. 577.)
"Regardless of the date of the offense, it is error to instruct the jury that voluntary manslaughter requires a finding that `the killing was done with the intent to kill' if the defendant claims the killing was done in the heat of passion or a sudden quarrel. [Citations.] If the defendant asserts the killing was done in an honest but mistaken belief in the need to act in self-defense, however, and the offense occurred prior to June 2, 2000, the jury must be instructed that unintentional killing in unreasonable self-defense is involuntary manslaughter. [Citation.]" ( Johnson, supra, 98 Cal.App.4th at p. 577.)
Appellant takes issue with Johnson and argues the retroactivity rationale of Blakeley must be applied here because: (1) retroactive application of an expanded definition of voluntary manslaughter worked to his disadvantage, which distinguishes Crowe and Johnson, where the expanded definition would have been to the defendants' advantage; and (2) the expanded definition of voluntary manslaughter from sudden quarrel or heat of passion was an unforeseeable enlargement of the crime. We disagree.
First, we disagree with appellant's premise that application of the expanded definition of voluntary manslaughter worked to his disadvantage. The cases prior to Lasko had not held that an unintentional killing, committed in the heat of passion, was involuntary manslaughter. In the single case appellant cites in which the court actually held, in a situation of provocation, that voluntary manslaughter required actual intent to kill — People v. Shannon, supra, 46 Cal.App.4th 1365 — the court affirmed a conviction of murder as the alternative. Involuntary manslaughter was not discussed. This distinguishes homicide committed under provocation from homicide committed in imperfect self-defense where the courts, prior to Lasko and Blakeley, had indeed held that a manslaughter committed without intent to kill was involuntary manslaughter. (See Blakeley, supra, 23 Cal.4th at pp. 90-91, citing People v. Welch (1982) 137 Cal.App.3d 834 [ 187 Cal.Rptr. 511], People v. Glenn (1991) 229 Cal.App.3d 1461 [ 280 Cal.Rptr. 609], and People v. Ceja (1994) 26 Cal.App.4th 78 [ 31 Cal.Rptr.2d 475].)
Second, we question whether the Lasko ruling was indeed unforeseeable. As noted in the Lasko opinion, its ruling was in line with the analysis of various legal scholars and with the "common law as well as the statutory law in most states." ( Lasko, supra, 23 Cal.4th at p. 110.) We agree with Crowe and Johnson that Lasko did not establish a new rule of law, but clarified the statutory definition of voluntary manslaughter contained in section 192, subdivision (a). That statute does not provide that intent to kill is an element of voluntary manslaughter in the context of a sudden quarrel or heat of passion. Further, we agree with this conclusion despite the fact that California courts had, prior to Blakeley and Lasko, misconstrued section 192. As noted in Crowe,
"If a decision does not establish a new rule, `the decision simply becomes part of the body of case law of this state, and under ordinary principles of stare decisis applies in all cases not yet final. "As a rule, judicial decisions apply `retroactively.' [Citation.] Indeed, a legal system based on precedent has a built-in presumption of retroactivity." [Citation.]' ( People v. Guerra (1984) 37 Cal.3d 385, 399 [ 208 Cal.Rptr. 162, 690 P.2d 635].)
"An example which illustrates the type of decision that does not establish a new rule of law and therefore should be applied to all cases not yet final is one that gives `effect to a statutory rule that the courts had theretofore misconstrued. . . .' ( People v. Guerra, supra, 37 Cal.3d, fn. 13 at p. 399.)" ( Crowe, supra, 87 Cal.App.4th at pp. 94-95.)
Finally, we agree with Johnson that the differences between Blakeley and Lasko, with regard to retroactivity, require that the trial courts apply them as the Supreme Court did — that is, apply Lasko but not Blakeley retroactively. We reject appellant's contention that the way to reconcile the cases is to apply Lasko and Blakeley retroactively only when the defendant has been convicted of murder and thus would "have been harmed by use of the old definition of voluntary manslaughter and [would have] benefitted from the expanded definition of voluntary manslaughter," because we cannot know until after the jury has been instructed and a verdict has been reached which position the defendant will occupy. Obviously, the trial court must have guidance prior to rather than after the giving of the instructions.
We therefore reject appellant's assertion that the jury was misinstructed.
2. Involuntary manslaughter instruction
The jury was instructed on two theories of involuntary manslaughter: (1) that appellant was so drunk he was legally "unconscious" of his actions when he committed the offense (CALJIC No. 8.47); and (2) that appellant engaged in a lawful act in a criminally negligent manner (CALJIC Nos. 3.36, 8.51). Appellant contends the trial court committed reversible error when it failed to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter based on additional theories: (1) that, if appellant lacked an intent to kill, the appropriate crime would be involuntary manslaughter; (2) that voluntary intoxication short of "unconsciousness" might have prevented appellant from forming an intent to kill, supporting an involuntary manslaughter verdict; and (3) that an unintentional killing committed during the commission of another crime could be involuntary manslaughter. Respondent disagrees, as do we.
"The offense of involuntary manslaughter requires proof that a human being was killed and that the killing was unlawful. [Citation.]" ( Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 454 [ 30 Cal.Rptr.2d 681].) Involuntary manslaughter is statutorily defined as including a killing that occurs "in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b); see People v. Lewis (2001) 25 Cal.4th 610, 645 [ 106 Cal.Rptr.2d 629, 22 P.3d 392].) Involuntary manslaughter also includes an unintentional killing that occurs while the defendant is committing a misdemeanor that is dangerous under the circumstances. ( People v. Lee (1999) 20 Cal.4th 47, 60-61 [ 82 Cal.Rptr.2d 625, 971 P.2d 1001].)
Involuntary manslaughter is a lesser included offense of murder. ( People v. Ochoa (1998) 19 Cal.4th 353, 422 [ 79 Cal.Rptr.2d 408, 966 P.2d 442].) A trial court must instruct sua sponte on lesser included offenses "`when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]'" ( People v. Breverman (1998) 19 Cal.4th 142, 154 [ 77 Cal.Rptr.2d 870, 960 P.2d 1094].) An error in instructing on lesser included offenses requires reversal only if the entire record establishes a reasonable probability that the error affected the outcome. ( Id. at p. 165.)
We find no error in this case. Appellant's first two arguments — that if he lacked an intent to kill the appropriate crime would be involuntary manslaughter, and that voluntary intoxication short of unconsciousness might have precluded him from forming the intent to kill — are in essence a repetition of his earlier argument that voluntary manslaughter instructions should have included the necessary element of intent to kill. We have rejected that argument above. Nothing in any of the cases appellant cites in support of this rehashed argument changes our mind.
We further disagree with appellant's argument that the jury should have been instructed that an unintentional killing during the commission of "another crime" constitutes involuntary manslaughter. If this homicide occurred during the commission of another criminal offense, that offense was a felony, not the misdemeanor required under this theory. ( People v. Lee, supra, 20 Cal.4th at pp. 60-61.) The undisputed evidence showed that Ms. Lombera's injuries were inflicted by the use of great, violent force. Her head was hit with a portable radio and possibly a chair as well. Her injuries included a compound fracture to her jaw, four teeth being knocked out, and 12 to 15 distinct head wounds. Infliction of these injuries did not involve a simple misdemeanor battery, as appellant seems to contend, but an aggravated felony assault with a deadly weapon or by means of force likely to produce great bodily injury. (See § 245, subd. (a).)
Appellant suggests no other theory that, under the law and the evidence, called for additional instruction on involuntary manslaughter. We reject appellant's contention that the instructions given were insufficient.
3.-5. 3. Prejudicial error Appellant, in a separate argument, claims prejudice resulted from the two related instructional errors — the giving of an impermissibly expanded definition of voluntary manslaughter and failing to fully instruct the jury on the lesser included offense of involuntary manslaughter. We did not find error, however, and therefore no prejudice analysis is necessary.
See footnote, ante, page 1603.
See footnote, ante, page 1603.
4. Imposition of fine fn_ Appellant contends the trial court violated ex post facto protections by imposing a parole revocation fine under section 1202.45 because the fine did not exist when he killed his victim. Respondent agrees, noting the constitutional ban on ex post facto laws prohibits imposing a section 1202.45 fine, enacted in 1995, on a defendant who committed the underlying offense before the statute authorizing the fine was enacted, in this case 1989. ( People v. Callejas (2000) 85 Cal.App.4th 667, 669, 678.) We agree with appellant, accept respondent's concession, and strike the fine.
5. Sentence imposed The trial court sentenced appellant on his voluntary manslaughter conviction to the upper term of 11 years in state prison. (See § 193, subd. (a).) In doing so, the court noted appellant's lack of a serious criminal history as a factor in mitigation. As factors in aggravation, the court noted appellant's prior history of violent behavior and the level of violence involved in the commission of the current offense. Although appellant argued there were mitigating factors that counterbalanced these factors in aggravation, he did not dispute these factors found by the court. Appellant contends, pursuant to Blakely v. Washington (2004) 542 U.S. ___ [ 124 S.Ct. 2531] ( Blakely), that his constitutional rights to proof beyond a reasonable doubt and a jury trial were violated because the aggravating factors leading to his upper term sentence were not found beyond a reasonable doubt by a jury. We disagree and conclude that Blakely does not apply to invalidate appellant's sentence. Blakely's effect on California's determinate sentencing law is currently pending in our Supreme Court in several cases, including People v. Towne, review granted July 14, 2004, S125677, and People v. Black, review granted July 28, 2004, S126182. We will, therefore, refrain from unnecessarily lengthy discussion. We believe, nonetheless, that it is necessary to note the fundamental concern that lies at the root of the Supreme Court's opinions from Jones v. United States (1999) 526 U.S. 227, through United States v. Booker (2005) 543 U.S. ___ [ 125 S.Ct. 738] ( Booker). It is the concern emphasized by Justice Scalia in his dissenting opinion in Monge v. California (1998) 524 U.S. 721, 738, where he discussed the "fundamental distinction between facts that are elements of a criminal offense and facts that go only to the sentence" and which, in turn "delimit the boundaries of . . . the Sixth Amendment right to trial by jury and the right to proof beyond a reasonable doubt." ( Ibid.) The court has struggled to find a "principled basis" for maintaining the distinction between crime and sentencing factor. ( Booker, supra, 543 U.S. at p. ___ [125 S.Ct. at p. 748].) We find nothing in the California sentencing scheme, as it was applied here, which impermissibly blurs the distinction between trial and proof of a crime on the one hand, and selection and imposition of appropriate sentence on the other. Certainly, judicial factfinding plays a part in California's sentencing scheme and, just as certainly, under section 117o, subdivision (b), the court must find the existence of at least one aggravating factor before it may select an upper term sentence. After Booker, however, we know that judicial factfinding in the exercise of sentencing discretion is not forbidden. In fact, it is not the concern at all, so long as the line between element and sentencing factor is maintained. As to the presumption in favor of a middle term sentence, section 1170, subdivision (b) does not compel the imposition of an upper term, even if the sentencing judge finds the existence of aggravating factors, for the court nonetheless retains the discretion to impose or not to impose it. ( People v. Thornton (1985) 167 Cal.App.3d 72, 77.) Thus, unlike the sentence enhancing facts at issue in Booker, which carried a required upward adjustment in sentencing, California's aggravating factors do not resemble elements of a crime additional to the crime(s) found by the jury. Unlike the enhancing facts in Booker and those in Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466, California's aggravating factors do not either allow or compel the sentencing court to impose a sentence any greater than the maximum allowed by statute. In an effort to maintain the boundary between element and sentencing factor, the Supreme Court has adopted a "bright-line rule." ( Blakely, supra, 542 U.S. at p. ___ [124 S.Ct. at p. 2540].) Any fact that "increase[s] the sentence that the defendant could have otherwise received" must first be submitted to the jury and found beyond a reasonable doubt. ( Booker, supra, 543 U.S. at p. ___ [125 S.Ct. at p. 749].) While it can be and has been argued, very coherently, that this rule applies to invalidate an upper term sentence in California because aggravating factors do allow a sentencing judge to go beyond the presumptive middle term sentence, the factors do not allow the judge to go beyond the possible punishment — the statutory maximum — of which the defendant is advised by the charges against him or her. (See Booker, supra, at p. ___ [125 S.Ct. at pp. 750-751].) While section 1170, subdivision (b) creates a presumption in favor of a middle term sentence, it does not increase the statutory maximum of which the accused has notice "before trial." ( Booker, at p. ___ [125 S.Ct. at p. 751].) Aggravating factors not only do not constitute the "`tail which wags the dog of the substantive offense'" ( Blakely, supra, 542 U.S. ___ [124 S.Ct. at p. 2539], quoting McMillan v. Pennsylvania (1986) 477 U.S. 79, 88), they do not, "with no warning in either [the charging document] or plea," subject the defendant to punishment greater than that allowed for the substantive offense. ( Blakely, at p. ___ [124 S.Ct. at p. 2542].) Because the federal sentencing guidelines at issue in Booker were mandatory, they created a permissible sentencing range that was the essence of a statutory maximum sentence. Then, they provided for increase of the permissible sentencing range based on facts not proven beyond a reasonable doubt to a jury. (See Booker, supra, at p. ___ [125 S.Ct. at pp. 751-752].) In contrast, our sentencing range in California is set by statute, and section 1170, subdivision (b) guides the trial court's exercise of discretion within that range. We believe, for these reasons, that a mechanical application of the Supreme Court's bright-line rule to California's aggravating factors is both not required and not desirable in that it would not serve to "preserve Sixth Amendment substance." ( Booker, supra, 543 U.S. at p. ___ [125 S.Ct. at p. 752].) That the sentencing court in this case concluded, based on evidence presented at trial, that appellant had a history of violence and committed the current offense in a particularly violent manner, and that the court then chose in its discretion to impose the greatest sentence that it could impose for the crime found by the jury — a sentence the potential for which appellant had notice from the charged offense — does not in our view convert the court's selection of a sentencing option into the imposition of punishment for a crime not charged and found by the jury. We reject appellant's claim to the contrary.
See footnote, ante, page 1.
Evidence concerning that history of violence had been presented by appellant, at trial, to show that in the past he had behaved violently when intoxicated and then had forgotten what he had done.
Section 1170, subdivision (b) provides: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime."
DISPOSITION
Appellant's conviction is affirmed, as is his sentence except to the extent it includes imposition (and stay) of a fine pursuant to section 1202.45. The trial court is directed to amend the abstract of judgment to delete said fine and to forward a copy of the amended abstract to the Department of Corrections.Harris, Acting P.J., concurred.
I join in the court's opinion except with respect to part 5, from which I respectfully dissent. The trial court imposed the upper term because the amount of violence defendant used was great and defendant had a prior history of violent behavior. These conclusions were not based on any facts necessarily implied in the jury's verdict or admitted by the defendant. The trial court did not rely on any prior convictions in imposing the upper term. Under these circumstances, I would hold that the sentence was imposed in violation of the Sixth Amendment as interpreted in Blakely v. Washington (2004) 124 S.Ct. 2531 and again in U.S. v. Booker (2005) 125 S.Ct. 738. Booker stated the rule as follows: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." ( Id. at p. 756.) A sentencing judge is prohibited under California's determinate sentencing law from imposing the upper term unless he or she finds aggravating facts. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420.) Therefore, we have here an instance of the type of situation that Blakely and Booker proscribe: Under a sentencing system in which an aggravated sentence must be supported by findings of fact, an aggravated sentence was imposed based on facts not found by the jury, admitted by the defendant, or consisting of prior convictions. Accordingly, I would vacate the sentence and remand to the trial court for resentencing.
On May 25, 2005, the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied July 20, 2005. George, C.J., and Baxter, J., did not participate therein.