Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA240354. Robert J. Perry, Judge.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Lawrence M. Daniels, Supervising Deputy Attorneys General, Zee Rodriguez, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Rimma Fetissova appeals convictions for conspiracy to solicit for a prostitute (Pen. Code, §§ 266h, subd. (a)/182, subd. (a)(1)), conspiracy to commit pandering (§§ 266i, subd. (a)(1)/182, subd. (a)(1)), soliciting for a prostitute (§ 266h, subd. (a)), pandering (§ 266i, subd. (a)(1)), and four counts of money laundering (§ 186.10, subd. (a)). The jury found a true allegation that two money laundering counts involved amounts in excess of $50,000. (§ 186.10, subd. (c)(1)(A).) Fetissova was sentenced to nine years in state prison consisting of a six-year upper term on the soliciting for a prostitute count, and consecutive terms of 16 months on the pandering count and eight months and one year, respectively, on two of the money laundering counts. Other sentences were stayed. (§ 654.) Fetissova contends that, because the sentences were based on aggravating factors determined by the court, the trial court's imposition of an upper term and consecutive sentences violated her constitutional right to a jury trial. We agree as to the upper term sentence, and will reverse and remand for resentencing.
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Fetissova was a principal operator of a large prostitution organization that advertised so-called "escort" services on the Internet and in the yellow pages. Telephone numbers were provided for potential customers, and calls from potential customers were received by pimps or madams referred to as "dispatchers." When a call was received, a dispatcher would either direct the customer to a prostitute at a designated apartment rented by the organization, or send a prostitute to a location designated by the customer. The dispatchers and prostitutes kept written records of the time of the calls, names of the prostitutes, amounts charged, and the division of receipts between the prostitutes and the organization.
During a lengthy investigation, police officers obtained credit card vouchers and other documents concerning the operation of the organization. Fetissova was identified as a principal operator of the organization based on her rental of an apartment occupied by prostitutes, and possession of documents such as bank statements and ledgers that disclosed the names of prostitutes and customers, the dates and locations of acts of prostitution, and receipts and payments. Fetissova also admitted her involvement in the organization.
At time of sentencing, the trial court found several aggravating factors to justify imposition of an upper term sentence. The aggravating factors were that (1) the crimes involved planning and sophistication, (2) Fetissova was a principal operator of a criminal organization, (3) the criminal activities were ongoing over a period of years, (4) and the criminal activities were large in scope and size. Fetissova contended that imposition of an upper term and consecutive sentences based on aggravating factors determined by the court violated her constitutional right to a jury trial under the rules announced in Apprendi v. New Jersey (2000) 530 U.S. 466, and Blakely v. Washington (2004) 542 U.S. 296.
In a November 28, 2005, opinion, we rejected Fetissova's claim of sentencing error following the holding of our Supreme Court in People v. Black (2005) 35 Cal.4th 1238. Thereafter, the United States Supreme Court granted Fetissova's petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], which overruled Black in part. In a June 18, 2007, opinion, we concluded that the trial court had committed error under Cunningham, vacated the imposition of an upper term sentence for the soliciting for a prostitute offense, remanded for resentencing, and otherwise affirmed the judgment. On July 17, 2007, we granted respondent's petition for rehearing and directed the parties to submit further briefing on the sentencing issue. We have received and reviewed those briefs.
Fetissova's petition for writ of certiorari to the United States Supreme Court addressed only the issue of whether California's determinate sentencing law violated a defendant's right to jury trial by permitting sentencing judges to impose enhanced sentences based on their determination of facts not found by the jury. She did not challenge the imposition of consecutive sentences in her writ of certiorari or in supplemental briefing for the instant case. In any event, our Supreme Court has subsequently held that imposition of consecutive sentencing does not implicate a defendant's right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 823 (Black II).)
DISCUSSION
Fetissova contends that the trial court imposed an upper term sentence for the offense of soliciting for a prostitute based on aggravating factors not determined beyond a reasonable doubt by the jury and, therefore, in violation of her constitutional right to a jury trial under the rules announced in Apprendi v. New Jersey, supra, 530 U.S. 466, and Blakely v. Washington, supra, 542 U.S. 296. We agree.
In Cunningham v. California, supra, 127 S.Ct. at page 868, the United States Supreme Court held that California's determinate sentencing law violated the Sixth Amendment right to a jury trial because it assigned to the trial judge, rather than to the jury, authority to make the factual findings that subject a defendant to the upper term sentence. The court explained that "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." (Id., at p. 860.)
In Black II, supra, 41 Cal.4th 799, and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), our Supreme Court interpreted Cunningham and its predecessors as permitting imposition of an upper term sentence without jury findings when one aggravating circumstance found by the court is established in accordance with the requirements of Apprendi v. New Jersey, supra, 530 U.S. 466, and Blakely v. Washington, supra, 542 U.S. 296. (Black II, at pp. 805-806, 813; Sandoval, at pp. 836-837.) Respondent does not contend that any of the aggravating circumstances in the instant case satisfy the constitutional requirements of those cases.
The denial of the right to a jury trial on aggravating circumstances, however, is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (Sandoval, supra, 41 Cal.4th at p. 838.) "[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Id., at p. 839.)
Respondent contends that the Cunningham error is harmless in this case because, if presented to the jury, the jury would have found beyond a reasonable doubt the existence of each of the aggravating factors relied on by the trial court in imposing the upper term sentence. We disagree. Although a jury reasonably could have made a true finding as to each of the aggravating factors, we cannot conclude beyond a reasonable doubt that the jury "would have assessed the facts in the same manner as did the trial court." (Sandoval, supra, 41 Cal.4th at pp. 840, 842.)
In determining whether Cunningham error is harmless beyond a reasonable doubt, a reviewing court "cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury" and, for this reason, a defendant does not have an opportunity or reason during trial to challenge the evidence supporting these aggravating circumstances unless the same evidence would have tended to undermine proof of an element of the charged offense. (Sandoval, supra, 41 Cal.4th at p. 839.) In addition, although the aggravating circumstances found by the trial court were based upon the evidence, they were not admitted by Fetissova or established by the jury's verdict but, instead, rested "ona somewhat vague or subjective standard" requiring an imprecise quantitative or comparative evaluation of her conduct. (Id., at p. 840.)
The imposition of the upper term sentence on the soliciting for prostitution offense is reversed and the case remanded for resentencing. Upon remand, the trial court may exercise its discretion to impose the lower, middle or upper term for the offense. (Sandoval, supra, 41 Cal.4th at p. 832.) In all other respects the judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.