Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F033
BUTZ, J.A jury convicted defendant Michael Alan Leighton of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), and the trial court sustained an enhancement allegation for a prior prison term (§ 667.5, subd. (b)). In 2003, the trial court sentenced defendant to state prison for an aggregate term of five years, consisting of the upper term of four years for the substantive offense and an additional one year for the enhancement. The court’s decision to impose the upper term was based on “the vicious and unprovoked nature of the assault on the victim” in which defendant “inflicted injuries causing the victim to lose consciousness and requiring suturing of the victim’s face.”
Undesignated statutory references are to the Penal Code.
The issue is whether defendant’s sentence contravenes the decisions of the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), and related authority. Specifically, defendant claims the trial court erred in imposing the upper term because the court relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thus depriving him of the constitutional right to a jury trial on facts legally essential to the sentence.
This is the third time this court has confronted the same issue in this case. In 2004, defendant first raised the constitutional violation based on the newly decided opinion in Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]. This court agreed with defendant’s position and issued an opinion reversing the judgment. Our state Supreme Court granted the People’s petition for review and ultimately retransferred the cause to this court with directions to vacate our decision and to reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238 (Black I), later vacated sub nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36]. Constrained by the holding in Black I, we affirmed the judgment in an opinion filed on October 31, 2005.
Counsel initially filed a Wende brief in this matter, and defendant was permitted to file a pro. per. supplemental brief. (People v. Wende (1979) 25 Cal.3d 436.) This court issued an opinion on July 19, 2004, but counsel subsequently petitioned for rehearing raising Blakely, which was decided on June 24, 2004. Because Wende review was no longer warranted, this court struck the original Wende brief and the supplemental pro. per. brief filed by defendant.
Defendant then filed a petition for writ of certiorari in the United States Supreme Court (docket No. 05-10189). The United States Supreme Court subsequently decided Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856] in January of 2007, rejecting the state Supreme Court’s reasoning in Black I. The United States Supreme Court granted defendant’s petition, vacated the judgment of this court, and remanded the cause to U.S. for further consideration in light of Cunningham.
We have now come full circle. We hold that defendant’s sentence violates Blakely, Cunningham and related authority.
All references and comments in this opinion concerning California’s determinate sentencing law (DSL) are to the law in effect prior to the enactment of recent legislation designed to comply with Cunningham. (See § 1170, Stats. 2007, ch. 3, § 2.)
FACTUAL BACKGROUND
In the early morning hours of January 1, 2003, defendant ran toward a young man in a gas station parking lot in Weaverville, and they quickly became involved in a fight. There was evidence suggesting defendant was the aggressor. This incident resulted in a charge of misdemeanor battery (§ 242) (count two) that was dismissed before trial on a motion by the prosecutor (see § 1385). A short time after the fight, the victim in the current case, his girlfriend, and another woman, stopped at the gas station to get something to eat and some cigarettes. The victim was intoxicated.
Defendant approached the victim as he was walking through the parking lot and said someone had told him (defendant) that the victim had called him “a piece of shit.” According to the victim, defendant was very close and leaning toward him and he responded by pushing defendant back and saying something to the effect of, “Get out of my way, you fucking asshole.” However, the victim’s girlfriend did not remember this and thought the victim simply tried to continue walking past defendant. In any case, defendant punched the victim in the face two or more times, causing him to fall down and lose consciousness for a short time.
The victim was taken to the hospital, where for approximately an hour or more he received extensive suturing for two lacerations to his face. A cautery pen was used to stop bleeding from one of the lacerations. A registered nurse who helped treat the victim opined that he also suffered a concussion. Defendant later came to see the victim at home and apologized.
DISCUSSION
Defendant claims the trial court erred in imposing the upper term because the court relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thus depriving him of the constitutional right to a jury trial on facts legally essential to the sentence. Defendant is correct.
Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) The United States Supreme Court subsequently held in Blakely, supra, 542 U.S. at pages 303-304 [159 L.Ed.2d at pp. 413-414], that for this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected in the jury’s verdict or admitted by the defendant. Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts.
In Black I, the California Supreme Court rejected a claim of Blakely error, concluding “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, supra, 35 Cal.4th at p. 1244.)
In Cunningham, however, the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s DSL “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling Black I on this point.) The Supreme Court reiterated that: “Except for a prior conviction, ‘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.’” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 873], quoting Apprendi, supra, 530 U.S. at p. 525 [147 L.Ed.2d at p. 476].)
On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)
Here, the trial court’s reason for imposing the upper term was “the vicious and unprovoked nature of the assault on the victim” in which defendant “inflicted injuries causing the victim to lose consciousness and requiring suturing of the victim’s face.” One enumerated aggravating factor in the rules of court applies if “[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” (Cal. Rules of Court, rule 4.421(a)(1).) The trial court’s finding seems to be related to this factor in some respects, and the court appears to have been cognizant of the rule that the enumerated aggravating and mitigating factors in the California Rules of Court are illustrative, not exclusive. (See People v. Whitten (1994) 22 Cal.App.4th 1761, 1765-1766; People v. Charron (1987) 193 Cal.App.3d 981, 994; rule 4.408(a).) The problem is that the aggravating factor or factors cited by the trial court were not submitted to the jury and proved beyond a reasonable doubt nor admitted by defendant. Thus, defendant’s Sixth Amendment rights were violated by the imposition of the upper term sentence. (People v. Sandoval (2007) 41 Cal.4th 825, 837-838 (Sandoval).)
Further rule references are to the California Rules of Court.
The People concede that “Cunningham generally precludes a trial court from finding facts to impose an upper term sentence.” But the People nevertheless assert that there was no violation in the instant case because the same rule does not apply where a prior conviction is used to increase the penalty for the crime. (See Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 873], Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455], and Black II, supra, 41 Cal.4th at p. 816.) Further, the People note that defendant had a prior prison term enhancement based on his conviction for two offenses in an earlier case. The People argue that the trial court’s finding of defendant’s prior offenses rendered him eligible for the upper term because the court could have considered the prior convictions to be an aggravating factor in this case.
Although section 1170, subdivision (b), prohibited the trial court from imposing an upper term using the fact of any enhancement upon which sentence is imposed, the People assert that the enhancement applies to a prior prison term and that the trial court was therefore free to use the fact of the prior convictions for purposes of aggravation.
In Black II, supra, 41 Cal.4th at page 816, the state Supreme Court held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Italics added.) But here the trial court did not cite any aggravating factor based on defendant’s record. For example, the court did not conclude that defendant’s prior convictions were “numerous or of increasing seriousness.” (Rule 4.421(b)(2).) Because the trial court did not specifically find any aggravating factor to be justified based on defendant’s record, defendant cannot be considered eligible for the upper term based on constitutionally permissible factors. (Cf. Black II, supra, 41 Cal.4th at pp. 818-820 [trial court considered aggravating factors that included factors based on defendant’s prior record].) To hold otherwise would usurp the trial court’s role in sentencing.
That is not to say that defendant’s record is irrelevant. The trial court may consider it to the extent it is relevant to the court’s exercise of its discretion on resentencing.
The issue of what remedy applies in this case has been resolved by the decision in Sandoval, which requires that the matter be remanded for resentencing. (Sandoval, supra, 41 Cal.4th at pp. 846-847.) At the resentencing hearing, the trial court may exercise its discretion to select an appropriate term.
DISPOSITION
Defendant’s conviction is affirmed, but his sentence is vacated and the matter remanded to the trial court for resentencing in accordance with the procedure set forth in Sandoval, supra, 41 Cal.4th at pages 846-847. Within 30 days after the filing of the remittitur, the trial court shall hold a new sentencing hearing.
I concur: BLEASE , Acting P. J.
DAVIS, J., Dissenting.
I respectfully dissent from my colleagues’ decision to return this matter to the trial court for resentencing. In People v. Black (2007) 41 Cal.4th 799, 812-816 (Black II),our Supreme Court characterized the issue before U.S. as “whether the trial court’s factfinding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed. [Italics in original.] . . . [¶] [U]nder the DSL the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional. [¶] Cunningham [v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]] requires U.S. to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at pp. 815-816.)
Here, after defendant waived his right to have a jury decide the matter, the trial court found beyond a reasonable doubt that defendant had served a prior prison term as charged in the information. A prior prison term may not always be sufficiently aggravating in a trial court’s opinion to warrant the upper term, but it is nonetheless always an aggravating circumstance under California law. (Cal. Rules of Court, rule 4.421(b)(3); Albermont Petroleum, Ltd. v. Cunningham (1960) 186 Cal.App.2d 84, 89 [rules adopted by the Judicial Council, if they do not transcend legislative enactments or constitutional provisions, have force of positive law and are as binding on the court and parties as statutes]; Pen. Code, § 1170, subd. (a)(3) [in sentencing, the court shall apply the sentencing rules of the Judicial Council].)
Once defendant was found to have served a prior prison term, that fact, along with the jury’s verdict on the battery charge, constituted the essential facts needed to expose defendant to and make him eligible for the statutory upper term he received. Once the defendant became eligible to receive the upper term, the judicial factfinding the trial court engaged in to select the upper term did not implicate the jury trial and reasonable doubt components of the Fifth and Sixth Amendments. (Black II, supra, 41 Cal.4th at pp. 812-816.) Since defendant does not allege the trial court abused its discretion when it imposed the upper term, the sentence should be affirmed.