Opinion
B212817
Filed December 17, 2008 REVIEW GRANTED April 1, 2009
To the Honorable Presiding Justice and Associate Justices of the California Court of Appeal, Second Appellate District, Petition for Writ of Habeas Corpus.
MICHAEL P. JUDGE, PUBLIC DEFENDER OF LOS ANGELES COUNTY, CALIFORNIA, Albert J. Menaster, Randall Rich, Christopher Capestro, Karen Nash, (State Bar No. 223593), Deputy Public Defenders, Appellate Branch, Los Angeles, California, Attorneys for Petitioner.
TOPICAL INDEX
PAGE PETITION FOR WRIT OF HABEAS CORPUS 1 VERIFICATION 8 MEMORANDUM OF POINTS AND AUTHORITIES I PETITIONER IS ENTITLED TO HABEAS CORPUS RELIEF TO ADDRESS THE ILLEGAL SENTENCE IMPOSED ON HIM BY THE TRIAL COURT 9 II THE SENTENCE IMPOSED BY THE TRIAL COURT EXCEEDED THE MAXIMUM ALLOWED BY LAW UNDER CUNNINGHAM V. CALIFORNIA BECAUSE THE SENTENCE VIOLATED PETITIONER'S RIGHT TO HAVE A JURY TRIAL ON ANY FACT THAT COULD INCREASE HIS PUNISHMENT 9 III PETITIONER IS ENTITLED TO RELIEF BECAUSE THE CASE RELIED UPON BY THE CALIFORNIA SUPREME COURT TO DENY HIS PETITION FOR REVIEW WAS OVERTURNED 14 CONCLUSION 17TABLE OF AUTHORITIES
FEDERAL CASES Blakely v. Washington (2004) 542 U.S. 296 5,13 Cunningham v. California (2007) 549 U.S. 270 2,13,14,15 Teague v. Lane (1989) 489 U.S. 288 15 United States v. Booker (2005) 543 U.S. 5 STATE CASES Downs v. State (1962) 202 Cal.App.2d 609 16 In Re Gomez (2008) Cal. LEXIS 12045 14 In Re Gomez (2008) 153 Cal.App.4th 1516, review granted 14 In re Johnson (1966) 65 Cal.2d 393 9 People v. Black (2005) 35 Cal.4th 1238 5,13 People v. Larsen (1956) 144 Cal.App.2d 504 16,17 In re Seeley (1946) 29 Cal.2d 294 16 STATE STATUTES California Rules of Court Rule 4.420 11 Penal Code § 207 2 § 210.5 2 § 220 2 § 236 1,2,3,10 § 273.5 1,2,3,10 § 422 2 § 654 3 § 664/187 2 § 664/261, subdivision (a) 2 § 1473, subdivision (a) 9 § 12022.7, subdivision (e) 1,3 PAGEINTRODUCTION
Petitioner David Camargo is currently serving a sentence of nine years after the trial court imposed the upper term without aggravating factors being found by a jury. On February 9, 2004, Mr. Camargo was convicted of violations of Penal Code sections 273.5 and 236 and was found by the jury to have caused great bodily injury (hereinafter "GBI") pursuant to Penal Code section 12022.7, subdivision (e). Mr. Camargo was acquitted of the more serious charges of attempted murder, kidnaping, attempted rape, assault to commit rape, and criminal threats. The court not only used facts that were not before the jury in order to impose upper term, it also considered facts that were rejected by the jurors when they acquitted Mr. Camargo of the more serious charges. The sentence imposed was in violation of Mr. Camargo's right to a jury trial on those aggravating factors as expressed by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270, a decision that overturned California's determinate sentencing law (hereinafter "DSL"). Mr. Camargo filed an appeal which raised this issue. It was denied. Mr. Camargo filed a Petition for Review by the California Supreme Court which was denied without prejudice pending the outcome of People v. Black, which was overturned by the U.S. Supreme Court in Cunningham.This court should grant the Petition for Writ of Habeas Corpus and modify Mr. Camargo's sentence to seven years instead of nine to reflect the correct statutory maximum at the time of his sentence.
By this verified petition the following facts are set forth for the issuance of the writ:
I
Petitioner was the defendant in a criminal action in case number VA075507-01. He was charged with violation of Penal Code section 664/187 (attempted murder), Penal Code section 273.5 (spousal battery), two counts of Penal Code section 236 (false imprisonment), Penal Code section 664/261, subdivision (a)(2) (attempted rape), Penal Code section 220 (assault to commit rape), two counts of Penal Code section 422 (criminal threats), Penal Code section 207 (kidnaping) and Penal Code section 210.5 (false imprisonment to avoid arrest). It was further alleged that in Counts 1-6 that in the commission of the offenses Petitioner personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (e). (Exhibit "A," Superior Court Minute Orders, p. 1 of 46.)
II
Petitioner was acquitted of the most serious charges at a jury trial which began on January 26, 2004, and ended on February 9, 2004. (Exhibit A, pp. 19-41.) Petitioner was convicted of violations of Penal Code sections 273.5 and 236, and the jury returned a true finding on the GBI allegation. (Exhibit A pp. 37-42.) Petitioner was not alleged to have any prior convictions. No "special interrogatories" were submitted to the jury for a determination of aggravating factors and none were proved beyond a reasonable doubt.
III
The trial court, at sentencing on March 16, 2004, imposed the high term for the conviction of Penal Code section 273.5 and consecutively imposed the high term for the GBI allegation. Sentencing for the false imprisonment charge was stayed pursuant to Penal Code section 654. As a result of these determinations, petitioner was sentenced to the combined term of nine (9) years in state prison. (Exhibit "B," Reporter's Transcript of Sentencing Hearing, hereinafter "RT.")
At the sentencing hearing, the court stated:
The court will select Count 2, the 273.5(a), as the base term. And considering the factors in aggravation under rule 4.421, again, number 1, the court takes into consideration that the crime did include great violence, great bodily injury or other acts disclosing a high degree of viciousness;
2, again, the victim was particularly vulnerable;
3, the manner in which the crime was carried out does indicate planning.
On two separate occasions — and merely because the jury did not find the defendant guilty beyond a reasonable doubt of the kidnaping when he took her out to the desert, he did indicate to her that, in effect, he was going to hell. She was going to go to heaven. And that in essence was she was going to be worse off than Jesus Christ after he finished with her.
That, fortunately, did not take place in the desert. But in the not-too-distant future the incident took place in the apartment building. And his first comments when he gets her into that room is "You're not going to like what's going to happen."
So the court does feel there was a planning by the defendant as to what he was going to do.
I do think, item number 4, that with this victim the defendant has engaged in violent conduct which indicates to this court that the defendant is a danger to society. (RT at pp. 31-33.)
IV
Petitioner asserts that the court's findings and conclusions were without legal merit and were improperly considered by the court at sentencing. The factors the court relied on in determining high term were either rejected by the jury or were never before the jury.V
Petitioner is illegally held in the custody, confinement, and restraint of the California Department of Corrections and Rehabilitation. He is currently held under CDC # V-30732. Petitioner alleges the illegal confinement is based upon the trial court's erroneous reliance on factors in aggravation that were not presented to the jury and are not legally cognizable as a basis for aggravating a sentence to nine years from a presumptive seven years.VI
A timely appeal was filed and denied in Court of Appeal Case B175113 (Exhibit C). A Petition for Review was filed with the State Supreme Court and that petition was denied (Exhibit D). However, in the denial the State Supreme Court stated:
Petition for review denied without prejudice to any relief to which defendant might be entitled upon finality of People v. Black (2005) 35 Cal.4th 1238 regarding the effect of Blakely v. Washington (2004) 542 U.S. 296, and United States v. Booker (2005) 543 U.S.___, on California law.
Petitioner filed a Petition for Writ of Habeas Corpus with the Court of Appeal of the State of California, Second Appellate Division, on June 28, 2007. (Exhibit E, Order of the Court of Appeal in case number B200118.) That petition was denied without prejudice because petitioner did not first seek relief in the Los Angeles Superior Court. (Exhibit E.)
Petitioner filed another Petition for Writ of Habeas Corpus in the Superior Court which was denied by Judge Dewey Falcone on October 20, 2008. (Exhibit F, Order of Judge Dewey Falcone, Exhibit G, Petition for Writ of Habeas Corpus [without exhibits].)
VII
Petitioner has no other adequate or speedy remedy at law.
VIII
Petitioner will suffer irreparable harm if he is subjected to completion of the illegal sentence in the state prison.
IX
The following exhibits are attached to this document and incorporated herein:
Exhibit A: Superior Court Minute Orders
Exhibit B: Reporter's Transcript of Sentencing Hearing, March 16, 2004
Exhibit C: Unpublished Opinion of the Court of Appeal in People v. David Camargo, case B175113
Exhibit D: Opinion of the Supreme Court of California in case S134268 denying Petition for Review without prejudice
Exhibit E: Order of the Court of Appeal in case B200118, denying Petition for Writ of Habeas Corpus without prejudice
Exhibit F: Order of Judge Dewey Falcone denying Petition for Writ of Habeas Corpus in case VA075507
Exhibit G: Petition for Writ of Habeas Corpus (without exhibits).
WHEREFORE petitioner respectfully prays:
1) That this court grant the Petition for Writ of Habeas Corpus, and set aside the illegally imposed sentence and resentence petitioner in accordance with Cunningham and its progeny.
2) For whatever further relief this court may deem appropriate.
MICHAEL P. JUDGE, PUBLIC DEFENDER OF LOS ANGELES COUNTY, CALIFORNIA Albert J. Menaster, Randall Rich, Karen Nash, (State Bar No. 223593) Deputy Public Defenders By_______________________ KAREN NASH Deputy Public Defender
VERIFICATION
Karen Nash declares as follows:I am an attorney at law licensed to practice in all the courts of California and I am employed as a deputy public defender for the County of Los Angeles.
In that capacity I am attorney of record for petitioner in the foregoing petition for writ of habeas corpus, and I make this verification on his behalf for the reason that the facts alleged therein are more within my knowledge than his.
I have read the foregoing petition and the exhibits lodged with this court and I know the documents are true copies of relevant originals and the facts alleged in this petition to be true as based upon my reading of the TCIS documents, transcripts, and the legal file maintained by this office and the exhibits attached hereto.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 18th day of December, 2008, at Los Angeles County, California.
KAREN NASH Deputy Public Defender
MEMORANDUM OF POINTS AND AUTHORITIES I
PETITIONER IS ENTITLED TO HABEAS CORPUS RELIEF TO ADDRESS THE ILLEGAL SENTENCE IMPOSED ON HIM BY THE TRIAL COURTHabeas corpus is a proper remedy to review a sentence in excess of that permitted by law and to correct the judgment so that the court will impose the only punishment lawful under the undisputed facts. (In re Johnson (1966) 65 Cal.2d 393.) Petitioner's sentence exceeded the maximum allowed by law; therefore, he is unlawfully imprisoned as contemplated by Penal Code section 1473, subdivision (a):
Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.
II
THE SENTENCE IMPOSED BY THE TRIAL COURT EXCEEDED THE MAXIMUM ALLOWED BY LAW UNDER CUNNINGHAM v. CALIFORNIA BECAUSE THE SENTENCE VIOLATED PETITIONER'S RIGHT TO HAVE A JURY TRIAL ON ANY FACT THAT COULD INCREASE HIS PUNISHMENT
Petitioner was acquitted of the most serious charges in this case, including kidnaping, attempted murder, attempted rape, and making criminal threats. The jury rejected those charges, finding petitioner guilty of spousal battery in violation of Penal Code section 273.5 and false imprisonment under Penal Code section 236. The jury found that the GBI enhancement was true. There were no aggravating factors alleged in the complaint or submitted to the jury.
The trial court imposed a nine-year prison term, even though the legal maximum, without the jury finding facts in aggravation, was seven years. The court selected the upper term using aggravating factors that had either been specifically rejected by the jury, substituting its own judgment for that the of jurors, or not heard by the jury at all. The court stated its reasons for imposing the upper term:
The court will select Count 2, the 273.5(a), as the base term. And considering the factors in aggravation under rule 4.421, again, number 1, the court takes into consideration that the crime did include great violence, great bodily injury or other acts disclosing a high degree of viciousness;
2, again, the victim was particularly vulnerable;
3, the manner in which the crime was carried out does indicate planning.
On two separate occasions — and merely because the jury did not find the defendant guilty beyond a reasonable doubt of the kidnaping when he took her out to the desert, he did indicate to her that, in effect, he was going to hell. She was going to go to heaven. And that in essence was she was going to be worse off than Jesus Christ after he finished with her.
That, fortunately, did not take place in the desert. But in the not-too-distant future the incident took place in the apartment building. And his first comments when he gets her into that room is "You're not going to like what's going to happen."
So the court does feel there was a planning by the defendant as to what he was going to do.
I do think, item number 4, that with this victim the defendant has engaged in violent conduct which indicates to this court that the defendant is a danger to society. (RT at pp. 31-33.)
The four aggravating factors used by the court to impose a sentence greater than the legal maximum were: 1) the crime involved great violence, great bodily injury or other acts disclosing a high degree of viciousness; 2) the victim was particularly vulnerable; 3) the manner in which the crime was carried out indicated planning; and 4) that the defendant engaged in violent conduct leading the court to believe the defendant is a danger to society.
The first factor, although found by the jury only with regard to the true finding on the GBI enhancement, cannot be used both as an enhancement and an aggravating factor. (Cal. Rules of Court 4.420 (c).) The court's finding on the second factor, that the victim was particularly vulnerable, was also not a legal basis to increase the mid term because the jury never found that fact. The court, while ruling on whether to grant probation, found that the victim's gender was a factor in whether she was particularly vulnerable. The court stated, "Secondly, the court does consider the victim particularly vulnerable. I mean, she is a female." (RT at p. 31, lines 4-6.)
The third factor, that the crime involved great planning, was also not found by the jury. And perhaps most disturbing about the court's use of this factor to increase petitioner's sentence is the fact that the court relied on facts that were specifically rejected by the jury. In order to find this third factor, the court stated that "merely because the jury did not find the defendant guilty beyond a reasonable doubt of the kidnaping when he took her out to the desert, he did indicate to her that, in effect, he was going to hell. She was going to heaven. And that in essence was she was going to be worse off than Jesus Christ after he finished her." (RT at p. 32, lines 10-16.) Petitioner was acquitted of the charges the court referred to above. The jury considered and rejected those facts. Therefore, the use of those facts as aggravating factors was improper.
Finally, the last factor used by the court to impose upper term was that petitioner "is a danger to society." Again, this is a fact not found by the jury and as such, it cannot be lawfully used to increase petitioner's punishment.
On appeal after sentencing, petitioner raised this issue in the Court of Appeal and in his Petition for Review to the California Supreme Court. The California Supreme Court denied his petition; however, it did so without prejudice to any relief to which the defendant might be entitled upon finality of People v. Black. (People v. Black (2005) 35 Cal.4th 1238.) At the time of his Petition for Review, the issue of whether the case of Blakely v. Washington applied to the California's Determinate Sentencing Law had not been decided. (Blakely v. Washington (2004) 542 U.S. 296.) The California Supreme Court in the Black case determined that Blakely did not apply to California's DSL; however, Black did not survive U.S. Supreme Court scrutiny. In Cunningham v. California, the U.S. Supreme Court held thatBlakely does apply to California's DSL and that the imposition of high term by a court, based on factors not found by a jury, is unconstitutional. (Cunningham v. California (2007) 549 U.S. 270.) Therefore, although the Black case was decided in a manner that did not provide petitioner with relief at the time of his Petition for Review,Black was overturned by the Cunningham case and petitioner is entitled to relief.
Petitioner should have been sentenced to the middle term, rather than the upper. Cunningham made it clear that it was the mid term, not the upper term, which was the relevant statutory maximum at the time petitioner was sentenced. (Cunningham v. California, supra, 549 U.S. 270.) Only facts that were found by a jury or admitted by petitioner could be used to enhance his sentence beyond that statutory maximum, the only exception being a prior conviction. (Ibid.) The proper remedy in this case is relief through this petition.
III
PETITIONER IS ENTITLED TO RELIEF BECAUSE THE CASE RELIED UPON BY THE CALIFORNIA SUPREME COURT TO DENY HIS PETITION FOR REVIEW WAS OVERTURNEDThe trial court that denied petitioner's habeas writ relied in part on the issue of whether the Cunningham decision would be "retroactive." The case cited by the court in its opinion dated October 20, 2008, is currently under review by the California Supreme Court. (In Re Gomez (2008)153 Cal. App.4th 1516, review granted by In Re Gomez (2008) Cal Lexis 12045.) Argument was heard by the California Supreme Court on December 3, 2008. At issue in Gomez is whether a habeas petitioner whose conviction became final after Blakely v. Washington but beforeCunningham v. California is entitled to the benefit of the high court's decision in Blakely. (www.courtinfo.ca.gov/courts/calendars/documents/SDECA08., PDF, as of December 16, 2008.) Petitioner asserts that he is entitled to such relief because the Supreme Court in Cunningham did not make a new rule, but rather, its decision was directed by the Blakely decision. (Cunningham, supra, 549 U.S. 270.)
A case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. (Teague v. Lane (1989) 489 U.S. 288.) The High Court simply applied the rule already established by Blakely to the California DSL and stated as much in its opinion:
As this Court's decisions instruct, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations omitted.] "[T]he relevant `statutory maximum,'" this Court has clarified, "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, 542 U.S., at 303-304, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (emphasis in original).
(Cunningham v. California, supra, 549 U.S. 270, 274-275.) Cunningham's holding was clearly dictated by the holding in Blakely, as evidenced by the above quote. As such, Cunningham did not advance a new rule and should be applied retroactively to petitioner's case.
In the instant case, petitioner is entitled to relief regardless of the outcome of the Gomez case because the California Supreme Court denied his petition without prejudice and the issue was pending before the U.S. Supreme Court at the time the petition was denied. The decision that the California Supreme Court relied on in denying the Petition for Review was overturned by the U.S. Supreme Court in Cunningham. As such, this court retains jurisdiction to modify the sentence to conform withBlakely and Cunningham.
The rule is settled in this state in accord with the weight of authority that where a court has jurisdiction of the person and of the crime, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but leaves only such portion of the sentence as may be in excess open to question and attack. In other words, the sentence is legal insofar as it is within the provisions of law and the jurisdiction of the court over the person and offense, and only void as to the excess when such excess is separate and may be dealt with without disturbing the valid portion of the sentence.
(People v. Larsen (1956) 144 Cal.App.2d 504, 508, citing In re Seeley (1946) 29 Cal.2d 294, 302.)
A writ of habeas corpus will issue to review an invalid sentence and the judgment may be corrected to reflect the only possible determination under the circumstances. (Downs v. State (1962) 202 Cal.App.2d 609.) Here, the law compels that the sentence be modified to conform to the holdings of Cunningham and to set aside that portion of the sentence that is in excess of what the law permits. (People v. Larsen, supra, 144 Cal.App.2d 504.)
Petitioner is not disputing the facts of the convictions; he challenges only the imposition of a sentence that exceeds the constitutional limits under a statutory scheme that has been determined unconstitutional as applied.
CONCLUSION
For all the reasons stated above, petitioner requests this court grant the Petition for Writ of Habeas Corpus and reduce petitioner's sentence from nine years to seven years.MICHAEL P. JUDGE, PUBLIC DEFENDER OF LOS ANGELES COUNTY, CALIFORNIA
Albert J. Menaster, Randall Rich, Christopher Capestro, Karen Nash, (State Bar No. 223593) Deputy Public Defenders
By_______________________ KAREN NASH Deputy Public Defender
Attorneys for Petitioner
CERTIFICATE OF COMPLIANCE
Counsel of Record hereby certifies that pursuant to the California Rules of Court, the enclosed PETITION FOR WRIT OF HABEAS CORPUS is produced using 13-point Roman type including footnotes and contains approximately 3,496 words which is less than the 14,000 words permitted by this rule. Counsel relies on the word count of the computer program used to prepare this brief.DECLARATION OF SERVICE
I, the undersigned declare, I am over eighteen years of age, and not a party to the within cause; my business address is 320 West Temple Street, Suite 590, Los Angeles, California 90012; that on December 18, 2008, I served a copy of the within PETITION FOR WRIT OF HABEAS CORPUS, DAVID CAMARGO, on each of the persons named below by depositing a true copy thereof, enclosed in a scaled envelope with postage fully prepaid in the United States Mail in the County of Los Angeles, California, addressed as follows:ATTORNEY GENERAL STATE OF CALIFORNIA DEPARTMENT OF JUSTICE 300 SOUTH SPRING STREET LOS ANGELES, CA 90013
PRESIDING JUDGE LOS ANGELES COUNTY SUPERIOR COURT 111 NORTH HILL STREET LOS ANGELES, CA 90012
HONORABLE DEWEY FALCONE, JUDGE JUDGE OF THE SUPERIOR COURT SOUTHEAST-NORWALK DEPARTMENT W 12720 NORWALK BOULEVARD NORWALK, CA 90650
I further declare that I servied the above referred-to document by hand delivering a copy thereof addressed to:
STEVE COOLEY, DISTRICT ATTORNEY APPELLATE DIVISION 320 WEST TEMPLE STREET, SUITE 540 LOS ANGELES, CA 90012
I declare under penalty of perjury that the foregoing is true and correct. Executed on December 18, 2008, at Los Angeles, California.
ZENAIDA GAETOS