Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS002632 & SS010506
RUSHING, P.J.
This case is before us for the third time, again presenting the question whether the trial court violated defendant’s federal right to jury trial when it imposed the upper term of four years on a charge of possession of a weapon by a prisoner, with a consecutive eight-month sentence for making terrorist threats. (Pen. Code, §§ 4502, subd. (a), 422.) We initially held that affirmance was compelled by People v. Black (2005) 35 Cal.4th 1238 (Black I) vacated sub. nom. Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210]. The United States Supreme Court then rejected the holding of that case and remanded this matter to us for reconsideration in light of Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 868] (Cunningham). On the basis of that decision we reversed the judgment. Before that decision could become final, however, the California Supreme Court rendered a new decision interpreting the mandate in Cunningham. (People v. Black (2007) 41 Cal.4th 799 (Black II).) We then granted respondent’s petition for rehearing in order to review this matter yet again. We now conclude that although Black II might permit imposition of the upper term in this case, the present record is insufficient to sustain such a sentence consistent with Sixth Amendment principles. We will therefore remand for resentencing.
Discussion
According to Black II, supra, 41 Cal.4th at page 806, an upper term may be imposed under the determinate sentencing law (DSL) without offending the Sixth Amendment right to jury trial if “at least one aggravating circumstance [is] established by means that satisfy Sixth Amendment requirements . . . .” The presence of any such fact makes the defendant “eligible” for the upper term, such that imposition of that term does not offend the Sixth Amendment, regardless of what facts the trial court actually takes into account. (Id. at pp. 806, 812-816, 820.)
The court was only concerned, as are we, with the DSL as it existed prior to its amendment effective March 30, 2007. (See Black II, supra, at p. 808, fn. 2; Stats. 2007, ch. 3.) Similarly we are concerned with the California Rules of Court as they existed prior to their amendment in May 2007.
The federal cases identify three means by which an aggravating fact may be established in a manner consistent with the Sixth Amendment: (1) A jury may find the fact beyond a reasonable doubt (see Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi)); (2) the defendant may admit the fact (Blakely v. Washington (2004) 542 U.S. 296, 303-304 (Blakely)); and (3) in the case of a prior criminal conviction, the court itself is competent to find the fact (see Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 (Almendarez)).
Here, in sentencing defendant to the upper term, the trial court stated as its reasons “the seriousness of the two domestic violence incidents as well as the weapons charge in the latter case.” The absolute “seriousness” of these incidents (as distinct from their seriousness relative to each other, discussed below) is not a fact the trial court was competent, under the Sixth Amendment strictures here at issue, to find. In Black II a somewhat similar factor was established by the jury’s verdict because the prosecutor sought special findings in order to establish the defendant’s ineligibility for probation. (Black II, supra, 41 Cal.4th at pp. 816-817; see Pen. Code, § 1203.066, subd. (a)(1).) Here there is no jury verdict, and thus no possibility of unearthing a jury finding rendering defendant “eligible” for the upper term.
We place “eligible” in quotes because, properly used, the term connotes a sense of fitness or worthiness for an office or position to which one may succeed or be elected or appointed. (See 5 Oxford English Dict. (2d ed. 1989), p. 140.) A more felicitous construction might be that certain facts expose a defendant to the upper term, or render him susceptible to it, or subject him to its imposition.
The sentence therefore cannot be sustained on the basis of the reasons stated by the trial court. Nor does respondent contend otherwise. Rather respondent notes the trial court’s recital that it had “read and considered the report of the probation officer and all the pleadings submitted by the attorneys.” According to respondent, the court thus in effect adopted the probation report’s “pages of reasons to impose the upper term,” including “numerous recidivism factors.” Respondent cites Black II, where the trial court stated that it had relied “primarily” on certain characteristics of the crime (id. at p. 816), but had also considered “the other aggravating circumstances set out in the district attorney’s sentencing brief” (Black II, supra, 41 Cal.4th at p. 818). The brief included an assertion that the defendant’s prior convictions were “ ‘numerous or of increasing seriousness.’ ” (Ibid.; see Cal. Rules of Court, rule 4.421(b)(2).) Based on the trial court’s allusion to the brief, the Supreme Court considered this rationale available to establish the defendant’s susceptibility to the upper term.
Under the Supreme Court’s analysis it is unclear why the trial court’s acknowledgment of a particular factor establishing the defendant’s “eligibility” for the upper term should make any difference if the factor is otherwise established by the record beyond dispute. Of course, if the existence of the factor is disputable, the trial court’s failure to find it may raise difficult questions about harmless error and appellate factfinding. But to honor a blanket adoption of a probation report or sentencing memorandum seems only to conceal these difficulties, not to dispel them.
Applying this treatment to the case at hand would mean that defendant was properly sentenced to the upper term if the record established, consistent with Sixth Amendment principles, any of the aggravating factors identified in the probation report or the prosecutor’s sentencing memoranda. It does not appear, however, that any of these factors were so established. The first such reason asserted in the probation report was that defendant was being “convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed.” (See now Cal. Rules of Court, rule 4.421(a)(7).) This is not only undemonstrated but patently false; defendant was sentenced separately on the misdemeanor charge, and consecutively on the two felony charges.
The report next asserted that “[t]he manner in which the crime was carried out indicates planning . . . .” (See now Cal. Rules of Court, rule 4.421(a)(8).) This factor, however, has nothing to do with recidivism and therefore cannot be competently found by a court. Since it was neither found by a jury nor admitted by defendant, it cannot be relied upon to sustain imposition of the upper term.
Nor does this record establish that “[t]he defendant’s prior . . . sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.” (See now Cal. Rules of Court, rule 4.421(b)(2).) At most the record shows that defendant had some vaguely defined history of commitment to the California Youth Authority. Even that fact is doubtful, since the only evidence supporting it is the probation officer’s unsworn personal recollection of “supervising this defendant as a minor, and that he was committed to the California Youth Authority.” In the same paragraph, the officer acknowledged that juvenile probation authorities had been “unable to locate the defendant’s juvenile record,” and expressed the hope that it could “be located, and forwarded to the Court.” We see no indication in the record that this occurred.
Given these circumstances we seriously doubt that the trial judge was competent to find anything about defendant’s history of juvenile adjudications. Judges are permitted to find that a defendant has suffered prior convictions because, in major part, the fact of a prior conviction is generally attended both by a high degree of “certainty” and by “procedural safeguards.” (Apprendi, supra, 530 U.S. at p. 488.) To permit such a finding on nothing more than a probation officer’s unsworn recollection would stray far indeed from those rationales.
As has been widely noted, the Supreme Court itself appears to have ongoing doubts about the soundness, and perhaps the durability, of the recidivism exception. (See Apprendi, supra, 530 U.S. at pp. 489-490, fn. omitted [“it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested”]; id. at pp. 520-521 (sep. opn. of Thomas, J. [acknowledging that author “succumbed” to “one of the chief errors of Armendariz-Torres” in failing to conclude that “the fact of a prior conviction is an element under a recidivism statute”].)
The officer also asserted that defendant “was on CYA parole when the crime was committed.” (See Cal. Rules of Court, rule 4.421(b)(4).) Assuming this is a factor that might come within the recidivism exception as conceived in Black II, the sentence cannot be sustained on this basis on the present record. The assertion itself is wholly unsupported by any information as to source or details. Moreover it is cast in genuine doubt by several circumstances, particularly in light of the probation officer’s failure elsewhere in the report to discriminate among the several charges. According to the probation report, the weapons charge on which the upper term was imposed arose on January 17, 2001, some nine months after the events giving rise to the earliest charges, for misdemeanor domestic violence. Elsewhere the prosecutor asserted, again without supporting evidence, that the early charge had followed by some four months defendant’s “release[] on parole from the California Youth Authority.” By our arithmetic this means that some 13 months elapsed between defendant’s claimed release on parole and his commission of the acts underlying the charge on which the upper term was imposed. Nowhere is it unequivocally asserted, let alone substantiated, that he was still on parole at this time. The general confusion surrounding this issue is exemplified by the prosecutor’s seeming acknowledgment that defendant had “apparently managed to finish his juvenile parole term” before some or all of the present charges arose. (Italics added.) We question whether any factfinder could find on this record, by any standard of proof, that defendant was in fact on parole from CYA when he committed the offense for which the aggravated sentence was imposed.
The probation officer asserted that “defendant’s prior performance on probation and parole was unsatisfactory.” (See now Cal. Rules of Court, rule 4.421(b)(5).) (Underlining removed.) No evidence is given, or cited, or summarized, concerning any performance on probation. The evidence concerning parole is that described immediately above. As we noted there, the suggestions of juvenile parole are simply too heavily compromised by contradiction and vagueness to sustain imposition of the upper term under the recidivism exception, even assuming that exception might otherwise cover them.
The prosecutor’s sentencing memorandum offered several additional factors, but without distinguishing between the two felony charges. It asserted that defendant had “engaged in violent conduct which indicates a serious danger to society” (Cal. Rules of Court, rule 4.421(b)(1)), but again a factor of this type can only be established by admission or jury finding, and neither of those is present here.
The only other new factor in aggravation proposed by prosecutor was that defendant’s “prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.” (Cal. Rules of Court, rule 4.421(b)(2).) It is true that the record before the trial court established three convictions in a manner satisfying Sixth Amendment requirements, because defendant was convicted on his own admissions (guilty pleas) of the three offenses prosecuted in this action. In Black II, supra,41 Cal.4th at page 818, the court cited People v. Searle (1989) 213 Cal.ApP.3d 1091, 1098, for the proposition that “three prior convictions are numerous.” It also appears that under Black II, supra, 41 Cal.4th at page 820, defendant’s adult crimes could be permissibly found to be of increasing seriousness. Such a determination may be made, wrote the court, “simply by reference to the range of punishment provided by statute for each offense.” (Ibid.) Speaking chronologically, the first offense established on this record is misdemeanor domestic violence, which carries a penalty of up to one year and a $6,000 fine. (Pen. Code, § 273.5, subd. (a).) Defendant’s next offense, criminal threats, when punished as a felony carries a penalty of 16 months, two years, or three years. (Pen. Code, §§ 18, 422.) The penalty for his third offense, possession of a pointed weapon in jail, was two, three, or four years. (Pen. Code, § 4502, subd. (a).) It thus appears that these offenses could properly be found to be of increasing seriousness on the face of the record.
The trouble is that these appear not to be “prior” convictions, but contemporaneous ones. Defendant entered guilty pleas to all three charges on the same day, was sentenced immediately on one (misdemeanor domestic violence), and sentenced several years later on the other two. We see no warrant to expand the language of the rule beyond its terms to predicate imposition of the upper term on multiple simultaneous convictions. It is also true that by the time of the sentencing here at issue, defendant had suffered a fourth intervening conviction in Arizona, for which he had apparently received a five-year sentence, making it a more “serious” offense, under the approach prescribed in Black II, than any of his three California convictions. But even if this could be viewed as a “prior” conviction for present purposes, it still only established one conviction in addition to those sustained here. This leaves the record at least one conviction short of the requisite three.
Given the numerous dubieties in the record, and particularly those concerning defendant’s juvenile record, we do not find it possible to conclude that any fact sufficient to expose defendant to an aggravated term has been found in a manner consistent with the Sixth Amendment. We will therefore, once again, direct that defendant be resentenced.
Disposition
The matter is reversed and remanded for resentencing only. In all other respects the judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.