Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F04903761-5. Gary D. Hoff, Judge.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J.; Cornell, J.; and Dawson, J.
INTRODUCTION
On June 6, 2004, appellant Pedro Ramirez Calixio fatally stabbed Luis Fernando Carrillo. Appellant was convicted after jury trial of voluntary manslaughter as a lesser included offense to the charged crime of murder; the jury found true a special allegation that he personally used a knife in the commission of the homicide. (Pen. Code, §§ 192, subd. (a), 12022, subd. (b)(1).) Appellant was sentenced to 12 years’ imprisonment, calculated as the upper term of 11 years for manslaughter plus a consecutive one-year term for the weapon use enhancement.
The jury was instructed on manslaughter arising from imperfect self-defense and manslaughter arising from heat of passion. It is not clear from the record on which theory the jury based its verdict.
Appellant argues that the court prejudicially erred by admitting a prior spousal battery conviction as impeachment evidence. He also raises a Blakely challenge to judicial selection of the upper term. Our original opinion in this matter was filed prior to issuance of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).) Therein, we rejected both of appellant’s arguments and affirmed. Our Supreme Court vacated the judgment and remanded the case for further consideration in light of Cunningham. We have determined that prejudicial sentencing error occurred.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
FACTS
I. Assault on evening of June 5
Juan and Martin Garcia lived with their sister, Maria, and Maria’s family in a house located on South Sunset Street in Reedley. During the evening of June 5, Juan, Martin, Carrillo, appellant, and a friend of appellant were drinking beer in the front yard of this house. When the group ran out of beer, appellant gave Carrillo some money to buy two 12 packs of beer at a nearby market. When Carrillo returned with the beer, they resumed drinking.
Around 10:00 or 11:00 p.m., appellant and Martin started fighting. Martin eventually landed on top of appellant on the sidewalk, where he started beating appellant on the face. Juan and Carrillo broke up the fight. Appellant took a pocket knife out of his pants, handed it to Juan and told him to stab Martin. Juan refused and threw the knife on the ground in front of the house.
Maria came outside and told Juan and Martin that she had called the police. At her insistence, they went inside the house. Carrillo walked toward the house as well. Appellant and his friend remained outside.
Juan testified that he did not take any money from appellant and he did not see Carrillo take any money from appellant (other than the money appellant gave him to purchase beer).
Around 12:30 a.m. on June 6, Reedley Police Officer Juan Jose Saenz observed appellant and another man standing on the corner of South Sunset and East Early Avenues. Appellant’s face was covered with blood and he appeared to be intoxicated. Appellant’s friend was extremely intoxicated and unable to stand without assistance. Appellant identified himself to the officer as Pedro Ramirez. He told Saenz that he and his friend had been approached by three Sureno gang members. One of the gang members pointed a knife at appellant and demanded his money. Appellant described the knife as a black folding knife with an American flag on it. When appellant told the gang members that he did not have any money, the two unarmed gang members began striking him in the face. One of them reached into appellant’s wallet and took out $150. Appellant told Saenz that he could identify the gang members. He said that one of the men who took his money lived “at a residence on Early with two pine trees.”
Saenz found a knife matching appellant’s description in the front yard of a residence located at 386 South Sunset Avenue. Appellant identified this knife as the one with which he had been threatened by the gang member. Saenz also observed blood on the ground between two residences located on South Sunset Avenue.
Appellant was transported by ambulance to the hospital. After being treated, he was placed in the hallway on a gurney. He was observed sleeping on the gurney as late as 4:00 a.m. on June 6. Shortly after 4:00 a.m., staff discovered that the gurney was empty. Staff looked for appellant throughout the hospital with no success.
II. Homicide on June 6
Carrillo lived in a two-bedroom house at 729 East Early Avenue in Reedley with his father, Jose Dalores Carrillo, and three other men: Candelario Arredondo, Roberto Martinez, and Genaro Enriquez. Carrillo and his father shared a bedroom; Arredondo and Enriquez shared the other bedroom; Martinez slept in the living room. A bathroom was situated between the two bedrooms. A door from each bedroom led into the bathroom. A rear door in the kitchen opens to an alleyway that continues from East Early Avenue to South Sunset Avenue.
Jose, Arredondo and Martinez arose early in the morning. Jose and Arredondo went outside and Martinez left to go to the store for cigarettes and beer. Enriquez and Carrillo were still in their bedrooms. After a short while, Jose’s foreman arrived and picked him up for work.
Arredondo went back inside the house. He entered the bathroom through his bedroom. The other door to the bathroom was closed. While in the bathroom, Arredondo heard Carrillo call his name twice and heard the sound of someone falling to the ground. Arredondo tried to open the door to Carrillo’s bedroom but it did not open very far because Carrillo was on the floor with his head blocking the door.
Arredondo slid sideways through the partially open door and saw Carrillo lying on his stomach on the floor. He was bleeding. A knife was on the ground nearby. Arredondo saw a person run out of the bedroom through a door leading to the kitchen. He did not know the person and could not identify him because it was dark in the room.
Martinez returned from the store. He quickly left again and summoned assistance. Officer Saenz was dispatched to the scene at 5:43 a.m. He found Carrillo on the bedroom floor, gasping for air. His shirt was covered with blood. Saenz located a two-inch-deep stab wound on the left side of his body, about six inches below his left nipple. When Saenz rolled Carrillo over, he found a 12-inch kitchen knife on the ground.
Jose and Arredondo both testified that they had not seen this knife before June 6 and said that the only knives in the house were shorter than this knife. Jose testified he never saw any knives in the bedroom he shared with his son.
Meanwhile, Maria went outside into her front yard sometime after 6:00 a.m. She saw appellant “at the corner.” It appeared to her that he was “coming out from the alley.” Maria watched as appellant walked away at a fast pace. He looked back as if to determine whether he was being followed.
Carrillo died from his wounds. An autopsy revealed that he suffered a total of three stab wounds to the left side of his abdomen. Two of the stab wounds were deep and one was superficial. Carrillo also suffered a cut on the palm of his right hand, which was consistent with a defensive wound. There was a bruise on the left side of his chest. Death was caused by perforation of the aorta and inferior vena cava. The pathologist testified that one of the stab wounds could not have been self-inflicted during a fight.
III. Appellant’s police interview
On June 9, appellant was interviewed in Spanish at the Reedley Police Department by Lieutenant Jose Garza. Detective Tony Schneider was present for portions of the interview. Appellant said that Martin attacked him for no reason on the night of June 5. He said that at some point during the attack, someone removed $150 from his wallet. He did not know who took the money. After initially denying that a knife was involved in the incident, he said that someone other than himself displayed a closed knife. Appellant admitted lying to Saenz on June 5 and said that he did so because he “didn’t want to get anyone in trouble.”
Appellant initially told Garza that he left the hospital around 8:00 a.m., walked home and went straight to bed. He did not wake up until the afternoon.
Appellant eventually admitted that he left the hospital around 4:00 a.m. After obtaining a clean shirt from a friend, he went to Carrillo’s residence. He wanted to recover the $150 that had been taken from him during the fight. He entered the house through the front door and went straight to Carrillo’s bedroom through the kitchen. He did not see anyone in the house on the way to Carrillo’s bedroom. Carrillo was lying on the bed. Appellant asked Carrillo why he took his money. Carrillo called appellant “a stupid old man,” pulled out a knife from under his pillow and pointed it at appellant. Carrillo approached appellant, swinging the knife. Appellant backed away and put his hands up to defend himself, sustaining a cut to his index finger. Appellant kicked and pushed at Carrillo and told him to back away and calm down. Carrillo approached him again. Appellant reached out and grabbed Carrillo’s right wrist. Appellant twisted Carrillo’s hand around and turned the knife back at him. He pushed and the knife penetrated Carrillo’s body one time. Carrillo slumped down onto the bed and fell onto the ground. Appellant ran out of the house and went home. He did not call the police because he knew Arredondo would do so; Arredondo had heard them fighting and yelled at them to stop.
A photograph was taken depicting a cut on appellant’s left hand.
IV. Appellant’s trial testimony
Appellant testified that Martin attacked him on the night of June 5, kicking him in the face. Martin knocked out a tooth and loosened another. Martin hit appellant several times and someone else hit him once on his left side. Martin started to pull out a knife but appellant kicked him, causing the knife to fall to the ground. Martin beat him for approximately five minutes before Juan pulled him away and both brothers went inside the house. During the fight, someone removed $150 from his wallet. He does not know who took his money.
On cross-examination, he testified that Martin kicked him several times.
He left the hospital around 3:50 a.m. After borrowing a clean shirt from a friend, he walked to Carrillo’s house to ask for the $150. Appellant said he was not angry about the missing money or about the assault. He did not take a knife with him to Carrillo’s house and did not intend to kill Carrillo. He went into Carrillo’s bedroom through the kitchen. Upon entering the bedroom, appellant said to Carrillo, “Pal, I came so you can give me back my money.” Carrillo replied, “You didn’t have enough from yesterday?” Carrillo pulled out a knife. Holding the knife in his right hand, Carrillo took several swings at appellant. He cut appellant once on the left hand. Appellant told Carrillo to calm down and said that he did not want any problems with him. Carrillo continued to swing the knife at appellant. To protect himself, appellant placed one of his hands on Carrillo’s right wrist and the other hand on the biceps area of Carrillo’s right arm. He pushed Carrillo. As a result, Carrillo stabbed himself once, and only once, with the knife.
Appellant said that he lied to Saenz on June 5 because he “didn’t want any problems with them.” He initially lied to Garza during the June 9 interview because he was afraid.
V. Rebuttal Evidence
Schneider testified appellant was asked during the June 9 interview to demonstrate how Carrillo had been stabbed. Garza played the role of Carrillo. Appellant grabbed hold of Garza’s wrist with both hands. He did not grab Garza’s upper bicep. When appellant was asked whether he had pushed Carrillo’s arm back more than one time, appellant answered that he had not done so.
Garza testified that during the June 9 interview appellant did not indicate that someone other than Martin hit him on his left side.
DISCUSSION
I. Appellant forfeited direct review of the court’s decision admitting his spousal battery conviction because defense counsel did not object below; his related ineffective assistance claim fails for lack of prejudice.
Appellant contends the judgment must be reversed because the trial court erroneously permitted him to be impeached with a spousal battery conviction. His argument is two-fold: (1) the spousal battery conviction was a misdemeanor and not a felony as represented by the prosecutor at trial; and (2) spousal battery is not a crime of moral turpitude. As we will explain, these arguments were waived because timely objection was not interposed below. Furthermore, appellant’s related ineffective assistance of counsel claim fails because he has not established a reasonable probability of a more favorable verdict if the challenged evidence had been excluded.
A. Facts
The People moved in limine to impeach appellant with a prior felony conviction. The prosecutor stated appellant had suffered a felony spousal battery conviction (§ 273.5) on October 27, 1999, in Madera County. The prosecutor argued this was a crime of moral turpitude. Defense counsel, Scott Kinney, affirmatively stated he did not oppose this motion. The court admitted the fact of the prior conviction but excluded its circumstances.
During appellant’s cross-examination he was impeached with the spousal battery conviction. Defendant admitted he was “convicted of inflicting corporal injury on a spouse that was a cohabitant.” The prosecutor referenced this conviction as a felony offense. Immediately thereafter, the court admonished the jury that “conviction of a felony, if you find that to be a fact, is just one of the circumstances that you may take into consideration in weighing the testimony of a witness.”
During closing argument defense counsel raised the subject of appellant’s prior conviction, as follows:
“And he took the stand and his 1999 domestic abuse charge came up and the prosecutor said oh, beating up his wife, or something to that effect, and I objected. There’s no evidence of anything like that. And if you wanted to see what felony domestic abuse is about, you go down to Department 11 any time of the week. Let me put it this way: Two people call the cops. The cop comes out. He puts the guy in jail. He signs a felony change of plea form to get out of jail and there’s your conviction; otherwise, you can wait a few months for trial. That’s how it works. There’s no evidence that he’s some evil runaround, you know, beat up people kind of person. I think it shows quite the opposite. He’s acted like nothing but a perfect gentleman the entire time, and there’s no evidence from anyone else saying he’s been anything but that.”
The prosecutor responded to defense counsel’s argument, as follows:
“There’s some discussion about what the defendant’s prior felony conviction means, and the judge read you an instruction. I just want to make sure this is clear, is that it’s not to be used to say that he has [a] propensity to do anything violent as much as common sense. You might want to think that. Don’t think that the law says [you] don’t use it for that reason. So please don’t use it for that reason. The only reason that’s relevant in this case is because the law says if someone’s convicted of a felony, and instruction tells you that you can use that to determine whatever credibility and credence you use for that witness. That’s the sole reason for it. So just limit it to that purpose.”
The jury charge included CALJIC Nos. 2.09 (evidence limited as to purpose), 2.20 (believability of witness), and 2.23 (believability of witness -- conviction of a felony).
The probation officer’s report stated in pertinent part that appellant’s spousal battery conviction was a misdemeanor violation of section 273.5, subdivision (a).
At the sentencing hearing the court asked the parties whether they had any corrections or additions to the probation officer’s report. Defense counsel stated he saw “nothing to correct.” The prosecutor pointed out that he “thought I had impeached [appellant] with a prior felony spousal abuse, and probation’s showing it’s a misdemeanor.” The prosecutor wondered “why the inconsistencies.” The court stated that to the extent there is an inconsistency between the probation officer’s report and the testimony presented during the trial, it “has disregarded those inconsistencies and is operating on the facts and circumstances of the offense as elicited through the trial testimony.”
Appellant filed a request for judicial notice of the October 27, 1999, minute order for pronouncement of judgment in Madera County Superior Court case number CR03360. It reflects that the court accepted a conditional plea to the charge of violating section 273.5, subdivision (a), which is a misdemeanor.
Judicial notice of the minute order is permissible pursuant to Evidence Code section 452, subdivision (a)(1). Respondent did not oppose the request for judicial notice. The request for judicial notice is granted.
B. The issues advanced on appeal were waived.
Respondent argues appellant waived direct review of the decision admitting the spousal battery prior conviction. We agree.
It is a well established principle of jurisprudence that only points that were raised and ruled on in the trial court are considerable on appeal. (Evid. Code, § 353; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) To preserve an evidentiary issue for appellate review, timely objection must have been interposed on the same ground during trial. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015; People v. Hill (1992) 3 Cal.4th 959, 989.)
Defense counsel affirmatively stated at trial that he did not oppose admission of the conviction. At sentencing, the prosecutor alerted counsel and the court to the discrepancy between the probation officer’s belief that the prior conviction was a misdemeanor offense and his understanding that it was a felony. Yet, defense counsel did not request a continuance to investigate the inconsistency and, if appropriate, prepare a new trial motion. He did not object on any basis or attempt in any fashion to preserve the point for appellate review.
Appellant argues, without citation to any supporting authority, that the issues should not be deemed waived because the prosecutor mischaracterized the prior conviction as a felony during the trial. Appellant implies the prosecutor intentionally misdirected the court. The record belies any possible inference of prosecutorial misconduct. It was the prosecutor who notified the court of the discrepancy between his understanding of the nature of the prior conviction and the probation officer’s report at the sentencing hearing. The prosecutor reminded the court that the spousal battery conviction had been admitted as a felony and explained that the probation report states the offense was a misdemeanor.
Accordingly, we conclude appellant waived review of the trial court’s ruling admitting the spousal battery prior. (People v. Kirkpatrick, supra, 7 Cal.4th at pp. 1014-1015; People v. Hill, supra, 3 Cal.4th at p. 989.)
C. Appellant’s related ineffective assistance claim fails for lack of prejudice.
A party claiming ineffective assistance of counsel bears the burden of showing both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) When an ineffective assistance claim can be resolved solely on the basis of lack of prejudice, it is unnecessary to determine whether counsel’s performance was objectively deficient. (In re Jackson (1002) 3 Cal.4th 578, 604.)
We have assumed, without deciding, that there can be no satisfactory explanation for the following omissions: (1) failure to investigate whether appellant’s prior spousal battery conviction was a felony; (2) failure to object during trial to admission of the prior conviction; and (3) failure to seek a continuance after being alerted by the prosecutor during the sentencing hearing that the probation officer’s report stated the prior conviction was a misdemeanor or to interpose any objection on this basis. We also have assumed, without deciding, that it is reasonably probable the court would have excluded the spousal battery prior if it had known the offense was a misdemeanor. As will be explained, appellant’s ineffective assistance claim fails because he has not shown that it is reasonably probable the jury would have acquitted him if he had not been impeached with the erroneously characterized spousal battery prior conviction.
Appellant contends admission of the mischaracterized prior conviction adversely affected his credibility and led the jury to convict him of manslaughter. We are not persuaded and agree with respondent that appellant’s credibility was damaged by many factors, not just the erroneously characterized spousal battery conviction. Appellant had an obvious motive to lie in that he was on trial for murder. (People v. Alvarez (1996) 49 Cal.App.4th 679, 688.) Appellant seriously damaged his credibility by lying to police officers on June 5 and June 9. The jury learned that he lied to Saenz on the night of June 5 by giving a false name and by claiming he had been robbed at knife point and assaulted by three Sureno gang members. The jury also learned that appellant initially lied during his June 9 interview with Garza about the time he left the hospital on the morning of June 6. Appellant also lied when he told Garza that he went directly home from the hospital and slept until the afternoon. Furthermore, there was a significant discrepancy between appellant’s trial testimony and his June 9 interview. When appellant showed Garza and Schneider how he caused Carrillo to stab himself, he placed both of his hands on Garza’s wrist. At trial, appellant testified one of his hands was on Carrillo’s bicep and the other hand was on Carrillo’s wrist. Moreover, appellant testified that he did not know who took the $150 from his wallet during the fight. Yet, he claimed to have gone to Carrillo’s house so Carrillo could return the money to him. This is logically inconsistent. Finally and most importantly, appellant’s testimony that he caused Carrillo to stab himself one time is inconsistent with the autopsy results that Carrillo suffered three stab wounds to his abdomen and it does not account for the defensive stab wound Carrillo suffered on the palm of his right hand.
In addition to these factors adversely affecting appellant’s credibility, the prior conviction evidence was neither improperly used nor heavily relied upon by the prosecutor. The jury did not learn the factual circumstances of the spousal battery conviction and the prior conviction is substantially less serious than the charged offense. The prosecutor’s cross-examination on this topic was brief. The jury was properly instructed on the limited use of this evidence and repeatedly instructed that a prior conviction is but one of the many factors to be considered when assessing a witness’s credibility. Finally, the prosecutor did not strongly rely on the prior conviction during his closing arguments. In fact, it was defense counsel who first referenced the prior conviction during summation. In response, the prosecutor merely reminded the jury that it was not to use the prior as propensity evidence and that this was but one of many factors to be considered when assessing appellant’s credibility.
For all of these reasons, we conclude it is not reasonably probable that the jury would have acquitted appellant if the spousal battery conviction had been excluded or if it had not been erroneously characterized as a felony. Therefore, the ineffective assistance claim fails.
II. Appellant must be resentenced.
A. Facts
The probation report listed aggravating facts relating to the crime and to appellant. It stated that the crime involved great violence and other facts disclosing a high degree of cruelty. It stated that the defendant has engaged in violent conduct indicating that he is a serious danger to society. It also stated that appellant’s prior convictions as an adult or sustained juvenile petitions are numerous or of increasing seriousness. Finally, it stated that appellant was on probation or parole when the crime was committed. No mitigating factors were listed. Imposition of the aggravated term was recommended.
The court imposed the upper term of 11 years for manslaughter plus a consecutive one-year term for the weapon use enhancement. The court explained its selection of the upper term, as follows:
“In looking at the probation officer’s report on page 7, specifically, where there’s references to circumstances in aggravation, the Court has not placed any weight on the fact that the probation officer feels that the crime involved great violence and great bodily harm or other facts disclosing a high degree of cruelty, viciousness or callousness. Those factors are all included in the crime for which the defendant was convicted and don’t involve anything in the commission and above the crime itself.
“In as far as mitigation goes, on page 8 the officer found no factors in mitigation; however, I would note that there are possible additional factors which the Court has considered, and that does include the fact that he was the victim of a severe beating hours before this incident. And I’ve also considered the fact that there was evidence of intoxication by the defendant on or about the time of this incident. Neither of those factors, however, excuse the defendant’s conduct in this case. So while I have considered them as mitigating factors, they don’t carry a substantial amount of weight.
“In looking at circumstances in aggravation, I will note that the defendant’s prior criminal history, although he has no known juvenile record, within a three-year period of time he had a reckless driving. His spousal abuse case, which this Court felt was, from the evidence presented at trial, was a felony. And, in fact, in reviewing my notes, during the cross-examination of the defendant during trial on January 24th he admitted that his spousal abuse case from Madera was a felony conviction. Also he has suffered a driving under the influence as well as assault with a deadly weapon, not a firearm, and according to the probation officer’s report, that on that particular instance there was a knife involved and that he had been drinking. And to the extent that he has a prior criminal history, I have taken that into consideration. And on balance, the Court finds that the aggravating circumstances outweigh the circumstances in mitigation.”
B. Analysis
Relying on Blakely, supra, 542 U.S. 296 and Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], appellant argues that the court prejudicially infringed his federal constitutional jury trial right at sentencing. We agree.
The Attorney General asserts that the issue was waived because appellant failed to challenge imposition of the upper term on this ground at sentencing. We disagree. Raising this issue would have been futile prior to Cunningham. The failure to make a futile argument does not amount to a waiver. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 820-821; People v. Boyette (2002) 29 Cal.4th 381, 432.)
In Cunningham, the United States Supreme Court invalidated the portion of California’s Determinate Sentencing Law that permits a judge to impose an upper term sentence based on aggravating sentencing factors, other than a prior conviction, that are not determined by a jury. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 863-864, 868].) Cunningham, Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) all recognize an exception for the fact of a prior conviction. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at pp. 488, 490; see also Almendarez-Torrez v. United States (1998) 523 U.S. at pp. 224, 243-244, 246.) Whether the prior conviction exception is properly interpreted to apply not only to the fact of a prior conviction but also to other issues relating to the defendant’s recidivism currently is pending before the California Supreme Court. (See, e.g., People v. Towne, review granted July 24, 2004, S125677; People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914.)
In this instance, the court expressly declined to give any weight to the facts relating to the offense that were contained in the probation report and it selected the aggravated term due to appellant’s recidivism. However, the court looked substantially beyond the mere fact of appellant’s prior convictions. It made statements reflecting factual determinations about the circumstances of appellant’s prior assault with a deadly weapon conviction--that the crime involved a knife and that appellant had been drinking. Furthermore, it erroneously determined that the prior spousal abuse conviction was a felony based on appellant’s trial testimony. As previously explained, the spousal abuse conviction was a misdemeanor. To the extent that the court engaged in judicial fact-finding, it erred.
Blakely error is reviewable under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24. (Washington v. Recuendo (2006) 548 U.S. ___ [126 S.Ct. 2546]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) It is true that a single aggravating circumstance is sufficient to authorize the imposition of an aggravated term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) However, under the circumstances presented in this case, we cannot tell beyond a reasonable doubt what term the court would have selected if it knew that the spousal abuse conviction was a misdemeanor and if it relied solely on constitutionally permissible criteria. Therefore, we cannot dismiss the sentencing error as harmless.
We summarily reject respondent’s suggestion that this matter be stayed pending resolution of the numerous Blakely-related cases currently pending in our Supreme Court.
DISPOSITION
The judgment of conviction is affirmed. The sentence is reversed and the matter is remanded for resentencing only.
Unless otherwise specified all statutory references are to the Penal Code and all dates refer to 2004. To avoid confusion, some witnesses have been referenced by their first names. No disrespect is intended or implied.