Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD191279, Melinda J. Lasater, Judge.
BENKE, Acting P. J.
A jury convicted Victor Manuel Cruz of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), battery with serious bodily injury (§ 243, subd. (d)), giving false information to a peace officer (§ 148.9, subd. (a)), and threatening a witness (§ 140). The jury also found that appellant had suffered four prior felony convictions and served two prison prior terms. The trial court sentenced appellant to a total of 19 years in state prison. On appeal appellant argues the sentence imposed by the trial court for counts 1 and 2 was based on facts not found true by the jury beyond reasonable doubt, which violated appellant's constitutional rights guaranteed by the Fifth, Sixth and Fourteenth Amendments. We agree.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Case
In May 2005 Eduardo Gonzalez agreed to accompany appellant to a store to buy cigarettes. After stopping at the store, appellant drove to Fiesta Island and parked his brown van. Appellant got out and used the restroom. When appellant returned to the van, he tried to punch Gonzalez. Appellant then tried to stab Gonzalez with a knife. A second van arrived with five or seven people who attacked Gonzalez with bats and knives. Appellant and the men from the other van hit Gonzalez about five or six times with a bat. He was also hit on the head with either a screwdriver or a knife. Gonzalez was eventually able to get out of the van. Appellant chased Gonzalez and punched him twice. Gonzalez ran and was chased by appellant and the other attackers. Appellant caught Gonzalez and tried to stab him in the neck with a knife. Gonzalez ran towards people on the beach and his attackers departed. Gonzalez was transported to the hospital, where he received five staples for the wound on the back of his head.
Officers Edward Nugent and Marlon Estepa responded to a radio dispatch to Fiesta Island, which described the suspect's car as a brown van. Nugent and Estepa conducted a traffic stop on appellant's van. Appellant identified himself as Manuel Cole. Nugent found no driver's license or criminal information for that name. Appellant was arrested for driving without a license. Nugent found a man's shirt with a fresh blood stain balled up and placed under the driver's seat. The DNA from the blood on the shirt matched Gonzalez's DNA.
Around June 15 Gonzalez was arrested on an unrelated matter and placed in a holding cell along with appellant and some other inmates. Appellant called Gonzalez a "rata," which is Spanish for snitch or rat. Then appellant and two other inmates started punching Gonzalez.
B. Defense Case
During trial the defense claimed appellant tried to help Gonzalez during the attack. Gonzalez testified that when the other van arrived, appellant was coming out of the bathroom. Deputy Juan Villa testified that he only saw Mario Madrid strike Gonzalez in the holding cell but that Gonzalez blamed his injuries on appellant.
DISCUSSION
I
Appellant argues the trial court's imposition of an aggravated term based on facts not found true by the jury beyond a reasonable doubt violated his constitutional rights guaranteed by the Fifth, Sixth and Fourteenth Amendments. Appellant also argues the error was not harmless beyond a reasonable doubt.
The People contend appellant forfeited or waived any Sixth Amendment error by failing to object on that ground at the sentencing hearing. We disagree. The forfeiture rule does not apply when an objection would have been futile. (People v. Esquibel (2006) 143 Cal.App.4th 645, 660; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.) At the time of appellant's sentencing hearing, the imposition of the aggravated term was governed by People v. Black (2005) 35 Cal.4th 1238. Black held "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive term under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Id. at p. 1244.) In light of Black, any Sixth Amendment objection would have been futile. Thus, appellant has not forfeited or waived his claim that the sentencing procedure violated the Sixth Amendment.
Turning to appellant's substantive argument, we note the trial court sentenced appellant to a total of nineteen years in state prison, which included the upper term of eight years for count one and an upper term of eight years for count 2, stayed pursuant to section 654. The court imposed the upper term based on six factors: (1) the victim was particularly vulnerable; (2) appellant induced others to participate in the attack; (3) appellant engaged in violent conduct which indicates he is a serious danger to society; (4) appellant's prior convictions are numerous and they are increasing in seriousness; (5) he was on parole at the time of the offense; and (6) his prior performance on probation or parole was unsatisfactory. The court also found there were no factors in mitigation, and thus, the aggravating factors merited imposing the upper term.
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) the United States Supreme Court held California's determinate sentencing law authorizing a judge to find facts by a preponderance of the evidence in imposing an upper term sentence violated a defendant's right to a trial by jury under the Sixth and Fourteenth Amendments. "Other than a prior conviction, see Almendarez-Torres v. United States 523 U.S. 224, 239-247 (1998) . . . , we held in Apprendi, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' [Citation.]" (Id. at p. ___ [127 S.Ct. at p. 864].) The recidivist exception is not limited to the mere existence of prior convictions. Courts in California and other jurisdictions have held the prior conviction exception " 'is not limited simply to the bare fact of a defendant's prior conviction' [citation], but applies to 'matters involving the more broadly framed issue of "recidivism." ' " (People v. Banks (2007) 149 Cal.App.4th 969, 973; see People v. Thomas (2001) 91 Cal.App.4th 212, 221; U.S. v. Cordero (5th Cir. 2006) 465 F.3d 626. 632-633; U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820; U.S. v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142.)
The non-recidivist factors cited by the trial court can no longer support imposing an upper term sentence unless the jury finds them true by proof beyond a reasonable doubt. (People v. Banks, supra, 149 Cal.App.4th at p. 971.) It is true that a single aggravating factor, such as appellant's prior convictions, his probationary status at the time of the crime, or his unsatisfactory prior performance on probation, is sufficient foundation for the imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Nevill (1985) 167 Cal.App.3d 198, 202; People v. Castellano (1983) 140 Cal.App.3d 608, 614-615.) However, we cannot say beyond a reasonable doubt that the court would have selected the upper term had it been limited to the consideration of the three recidivist factors.
The People argue that any error was harmless beyond a reasonable doubt because the jury would have found at least one aggravating circumstance true. While the record has sufficient evidence to warrant such findings by the jury, we cannot say beyond a reasonable doubt the jury would have come to this conclusion. Likewise, we cannot dismiss the possibility the upper term would have been imposed and thus it is not appropriate to simply reduce appellant's sentence to the midterm. Therefore, we shall remand this matter to the trial court and allow it to decide whether, in the exercise of its discretion, defendant's prior criminal record alone supports imposing the upper term.
II
Appellant also argues the constitutional right to jury trial extends to the issue of the identity of the person who suffered the alleged prior convictions. Although we reverse on other grounds, we note other courts have addressed the issue of identity in relation to prior convictions. The cases held a defendant has no constitutional right to a jury trial on the issue of his identity as the person convicted of prior crimes. (People v. Belmares, (2003) 106 Cal.App.4th 19, 26-28; People v. Garcia (2003) 107 Cal.App.4th 1159, 1164-1165.) Section 1025, subdivision (c), states "the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury." Therefore, Cunningham does not extend to the issue of identity in prior convictions.
DISPOSITION
The court's imposition of an upper term sentence for assault with a deadly weapon and battery with serious bodily injury is reversed, and we remand this matter for further
proceedings not inconsistent with this opinion and Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. In all other respects, the judgment is affirmed.
WE CONCUR: HUFFMAN, J., McDONALD, J.