Opinion
H029635
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. EDWARD GILFILIAN HULTON, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant pleaded guilty to one count of arson (Pen. Code, § 451, subd. (d)) and one count of making a criminal threat (Pen. Code, § 422). The court imposed the maximum possible sentence of three years and eight months, composed of the upper term for the arson count and a consecutive term for the criminal threat count. On appeal, he contends that the trial court violated Penal Code section 654 when it imposed terms for both counts, and he claims that the trial court violated his constitutional rights by imposing an upper term for the arson count based on factors that had not been found true by a jury or admitted by him. In our original opinion, we rejected his Penal Code section 654 contention and concluded that his challenge to the imposition of the upper term was foreclosed by the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I).
The California Supreme Court granted review, and it subsequently transferred the case back to this court for reconsideration in light of its intervening decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On reconsideration, we conclude that defendants challenge to the imposition of the upper term has merit and remand for resentencing in accordance with Sandoval.
I. Background
The original complaint contained a single count of arson which alleged that defendant had burned his mothers car on January 15, 2004. The complaint was subsequently amended to add a criminal threat count which alleged that, "on or about" January 13, 2004, defendant threatened to inflict great bodily injury or death on his mother. Defendant waived his right to a preliminary examination and entered guilty pleas to both counts. Counsel stipulated to a factual basis for the pleas, but the factual basis was not identified.
The only description of the facts of the offenses is contained in the probation report and the documents attached to it. Defendant has long suffered from serious mental illness. In 1998, defendant told a psychiatric social worker that he was going to "blow [his sisters] brains out." Around the same time, defendant told his mother that he was going to "kill someone." His mother and sister obtained a restraining order against him, which he repeatedly violated. Defendants threats eventually seemed to abate, and, when the restraining order expired, they did not renew it.
Defendants threats resumed in October 2003. On the evening of January 14, 2004, defendant came to his sisters home, where his sister and mother resided with his sisters son. He complained to them "of how badly he had been treated and lied to as a child." Defendant threatened his mother "and stated he would burn the house down."
Defendant returned four hours later, at 1:00 a.m., when his mother and sister were asleep inside the house. He poured gasoline on his mothers car, which was parked in the houses driveway, and set the car on fire.
Defendants appellate attorney and the Attorney General dispute the amount of time between the threat and the arson. The record reflects that the arson occurred at 1:00 a.m. on January 15, 2004. The threat was alleged to have occurred "on or about January 13, 2004," but it is fairly clear that it actually occurred on the evening of January 14, 2004, about four hours before the arson.
After the arson, but before defendant was arrested, defendant left a phone message on his sisters answering machine that said "[n]ow that I know Im going to Hell Im going to take all of you with me."
Defendant admitted setting the car afire. He told the probation officer that he burned his mothers car because her failure to pay him for work he had done on his sisters home had resulted in his mobile home being towed. "[B]ecause he was not able to have his vehicle, he decided `it was only fair to destroy their vehicles as well." Defendant insisted that he had not intended for the fire to burn the house or to hurt anyone.
The court imposed the upper three-year term for the arson count because it "involved a great deal of violence . . . [t]he threat of violence for the victims as indicated, their vulnerability when they sleep, when the arson vehicle, the place . . . ." A consecutive eight-month sentence for the threat count was imposed because "this is a different felony commit[m]ent under a difference circumstance." Defendant filed a timely notice of appeal.
Defendant filed a notice of appeal and a request for a certificate of probable cause. His request for a certificate of probable cause was denied. The Attorney General suggests in a footnote that defendants notice of appeal was not timely filed. He is incorrect. Judgment was entered on September 22, 2005. Defendants notice of appeal was postmarked from prison on November 18, 2005. Under the prison-delivery rule, this notice of appeal was timely filed within the 60-day period. (In re Jordan (1992) 4 Cal.4th 116, 130 [prison-delivery rule].)
II. Discussion
A. Multiple Punishment
Defendant asserts that the criminal threat count and the arson count were not separately punishable because they were both committed with the same objective.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654.) "The initial inquiry in any section 654 application is to ascertain the defendants objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.)
Defendants two violations were his threat to physically harm his mother (the criminal threat) and his burning of her car (the arson). Defendant admitted that he burned his mothers car with the intent of depriving her of her vehicle as retribution for her perceived responsibility for defendants recent loss of his own vehicle. In contrast, the context of defendants threat to kill or physically harm his mother indicated that this threat was aimed at instilling fear in his mother to punish her for events that had occurred in defendants childhood, decades earlier. Defendants desire to deprive his mother of her vehicle and his intent to punish her through fear of physical harm for events during his childhood were distinct and independent of each other, and neither was incidental to the other. Thus, even though defendant engaged in an "otherwise indivisible course of conduct" against his mother, section 654 did not preclude punishment for these independent violations which had separate objectives.
B. Imposition of Upper Term
Defendant challenges the trial courts imposition of an upper term based on factors that were neither admitted by him nor found true by a jury. The trial courts reasons for imposing the upper term for the arson were that the offense "involved a great deal of violence . . . [t]he threat of violence for the victims as indicated, their vulnerability when they sleep, when the arson vehicle, the place . . . ."
The initial question is whether defendant forfeited his contention. The Attorney General contends that defendant forfeited his claim by failing to raise it at sentencing. In Sandoval, as here, the sentencing hearing occurred after Black I and before the United States Supreme Courts ruling in Cunningham v. California (2007) __ U.S. __ (Cunningham), and therefore an objection would have been futile. As the California Supreme Court held in Sandoval, a Sixth Amendment challenge to the imposition of an upper term sentence is not forfeited by a defendants failure to objection at a post-Black I, pre-Cunningham sentencing hearing. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) Defendant did not forfeit his contention.
The trial courts imposition of the upper term clearly violated defendants Sixth Amendment rights. In Sandoval, the trial court relied upon several aggravating circumstances to support its imposition of the upper term, including the fact that the offense "involv[ed] a great amount of violence" and the victims were particularly vulnerable. (Sandoval, supra, 41 Cal.4th at p. 837.) Because none of the aggravating circumstances had been found true by the jury or admitted by the defendant, and none of them were based on a prior conviction, the California Supreme Court concluded that the defendants Sixth Amendment rights had been violated by the imposition of the upper term. (Sandoval, at p. 838.) The same is true here. The reasons given by the trial court for its imposition of the upper term, like the reasons given by the trial court in Sandoval, were not admitted by defendant or found true by a jury, and were not based on a prior conviction.
The only remaining question is whether the trial courts error was harmless beyond a reasonable doubt. In Sandoval, the California Supreme Court set forth the applicable standard of review. "[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." (Sandoval, supra, 41 Cal.4th at p. 839.) In making this assessment, "the 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." (Ibid.)
"[The defendants] incentive and opportunity at the sentencing hearing to contest any aggravating circumstances mentioned in the probation report or in the prosecutors statement in aggravation . . . were not necessarily the same as they would have been had the aggravating circumstances been tried to a jury. First, the standard of proof at the sentencing hearing was lower; the trial court was required to make a finding of one or more aggravating circumstances only by a preponderance of the evidence. (Cal. Rules of Court, rule 4.420(b).) Second, because the trial court had broad discretion in imposing sentence, a finding by the court concerning whether or not any particular aggravating circumstance existed reasonably might have been viewed by defense counsel as less significant than the courts overall assessment of defendants history and conduct. Counsels strategy might have been different had the aggravating circumstances been tried under a beyond-a-reasonable-doubt standard of proof to a trier of fact that was responsible only for determining whether such circumstances were proved (and not for making the ultimate sentencing decision). Accordingly, a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury.
"Additionally, to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. The sentencing rules that set forth aggravating circumstances were not drafted with a jury in mind. Rather, they were intended to `provid[e] criteria for the consideration of the trial judge. ([Pen. Code], § 1170.3, subd. (a).) It has been recognized that, because the rules provide criteria intended to be applied to a broad spectrum of offenses, they are `framed more broadly than criminal statutes and necessarily `partake of a certain amount of vagueness which would be impermissible if those standards were attempting to define specific criminal offenses. (People v. Thomas (1979) 87 Cal.App.3d 1014, 1023, 1024.) Many of the aggravating circumstances described in the rules require an imprecise quantitative or comparative evaluation of the facts. For example, aggravating circumstances set forth in the sentencing rules call for a determination as to whether `[t]he victim was "particularly vulnerable,["] whether the crime `involved a[] . . . taking or damage of great monetary value, or whether the `quantity of contraband involved was `large (Cal. Rules of Court, rule 4.421(a)(3), (9) & (10), italics added). In addition, the trial court may consider aggravating circumstances not set forth in rules or statutes. Such aggravating circumstances need only be `reasonably related to the decision being made. (Id., rule 4.408(a).) Aggravating circumstances considered by the trial court that are not set out in the rules are not subject to clear standards, and often entail a subjective assessment of the circumstances rather than a straightforward finding of facts." (Sandoval, supra, 41 Cal.4th at pp. 839-840.)
In Sandoval, the California Supreme Court found the trial courts error prejudicial and remanded the matter for resentencing. Sandoval requires us to find that the trial courts error in this case too was prejudicial. Here, as in Sandoval, we cannot assume that the factual record before the trial court with regard to the aggravating circumstances contained the same evidence that would have been presented to a jury. Because there was no jury trial, and not even a preliminary examination, the only evidence before the trial court was the probation report. Had the aggravating circumstances been presented to a jury, defendant might well have presented evidence that the victims were not particularly vulnerable, and that the burning of the vehicle did not significantly endanger them. Since he was convicted of, and received a consecutive sentence for, a criminal threats count, the mere fact of a threat, without more, could not be used to aggravate the arson count. (Cal. Rules of Court, rule 4.420(d) [dual use of fact prohibited].) The fact that the trial court applied the preponderance of the evidence standard of proof, rather than the reasonable doubt standard of proof, limits the value that we can place on the courts findings. Because the aggravating circumstances relied upon by the trial court were inherently subjective and could have been viewed quite differently by a jury, a beyond-a-reasonable-doubt standard could have made a difference in this case. In sum, on this record, we cannot conclude beyond a reasonable doubt that a jury "unquestionably would have found true at least a single aggravating circumstance" had the aggravating circumstances been presented to a jury for findings. Hence, we must remand the matter for resentencing in accordance with Sandoval.
III. Disposition
The judgment is reversed, and the matter is remanded for resentencing in accordance with Sandoval.
We Concur.
McAdams, J.
Duffy, J.