Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CH022979
SCOTLAND, P.J.
Defendant Timothy Leon Mitchell, an inmate in state prison, resisted the efforts of correctional officers to get him to return to his cell. When an officer finally used pepper spray on defendant, a cellmate began fighting with Officer Adams. As Officer Sloss-Peck ran to help Adams, she slipped and fell, landing on her back with her head hitting the concrete floor. When Sloss-Peck tried to get up, she was “tackled from behind” by defendant, who put her in a head lock. After other officers helped her to handcuff defendant, Sloss-Peck sought treatment for pain in her neck and back. According to her, she “had an operation on [her] neck as a result of this incident” and took a medical retirement from her job as a correctional officer.
A jury found defendant guilty of battery on a nonconfined person (Pen. Code, § 4501.5) and resisting an officer (Pen. Code, § 69). He was sentenced to the upper term of four years in state prison (doubled due to his prior serious felony conviction) for the battery conviction, and to a concurrent upper term of three years (doubled due to his prior conviction) for the resisting conviction.
On appeal, defendant contends (1) imposing the upper term for the battery conviction based on aggravating circumstances not submitted to the jury violated the Sixth Amendment of the United States Constitution as interpreted in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham), and (2) failing to stay the sentence for the resisting conviction violated Penal Code section 654 (further section references are to the Penal Code unless otherwise specified).
We conclude that the sentences must be vacated and that the matter must be remanded to the trial court for resentencing.
DISCUSSION
I
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. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a 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. (Blakely v. Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414].)
Accordingly, 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 determinate sentencing law in existence when sentence was imposed in this case “violate[d] 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].)
Here, in imposing the upper term for the battery conviction, the trial court cited as aggravating circumstances (1) the attack was purposeful and without warning, (2) the victim was a female correctional officer who weighed less than defendant, and (3) the victim suffered substantial harm, including the loss of her career. This judicial fact finding violated defendant’s right to a jury trial on facts used to enhance his sentence because the circumstances upon which the court relied were not related to a prior conviction. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
Cunningham error is harmless if we can say beyond a reasonable doubt that the jury would have found the aggravating circumstances true if they had been submitted to the jurors. (See Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 474]; People v. Sandoval (2007) 41 Cal.4th 825, 838-840.)
The People urge us to find the error harmless in this case. We are unable do so. The injury to Officer Sloss-Peck’s neck and back resulted in a medical retirement from her employment. However, we cannot conclude beyond a reasonable doubt that the jury would have found the injury was caused when defendant tackled her rather than when, prior to defendant touching her, Sloss-Peck slipped and fell on her back, hitting her head on the concrete. And we cannot conclude beyond a reasonable doubt that the jury would have found a correctional officer, of whatever size or gender, is a particularly vulnerable victim. The People make no effort to defend the upper term based on the finding that the attack was purposeful and without warning (see Cal. Rules of Court, rule 4.421(a)(8) [“The manner in which the crime was carried out indicates planning, sophistication, or professionalism”]); and we are unable to say beyond a reasonable doubt that a jury would have found this to be an aggravating circumstance.
Consequently, we must vacate the sentence for the battery conviction and remand for resentencing on that count in accordance with the holding in People v. Sandoval, supra, 41 Cal.4th at pages 846 and 849-852.
II
As we have already noted, defendant contends, and the People agree, that the trial court should have stayed the sentence imposed for the resisting conviction rather than ordering it to be served concurrently with the sentence imposed for the battery conviction.
Section 654 precludes multiple punishment for multiple convictions arising from the same “act or omission” (Neal v. State of California (1960) 55 Cal.2d 11, 18) and applies to a “course of criminal conduct wherein multiple violations are incident to an accused’s single criminal objective.” (People v. Beamon (1973) 8 Cal.3d 625, 638.) However, “when an accused has embarked upon a course of conduct wherein he may be deemed to have entertained multiple criminal objectives none of which are merely incidental to any other, the meaning of ‘act or omission’ has been construed in a manner consistent with that multiple objective and what may appear on the surface to be a single act may embody separately punishable violations. We must, accordingly, give heed to an accused’s objectives when they can be ascertained. [Citation.] . . . [¶] . . . The initial inquiry in any section 654 application is to ascertain the defendant’s 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.” (Id. at pp. 638-639; see People v. Britt (2004) 32 Cal.4th 944, 951-952; People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1143.)
The trial court’s finding that section 654 does not apply will be upheld on appeal if supported by substantial evidence. (People v. Jones, supra, 103 Cal.App.4th at p. 1143; People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1253; but see People v. Britt, supra, 32 Cal.4th at p. 953 [avoid an analysis which “parses the objectives too finely”].)
At sentencing, the court first announced its intention to stay the sentence on the resisting conviction, stating: “We will not be sentencing you in addition for Count II. What that means is the facts surrounding Count I and the facts surrounding Count II both arose out of the same incident. So we are not, by law, nor would I want to morally, punish you on both those counts because they are pretty similar. It’s referred to as a [section] 654 issue. So I’ll be sentencing you only for -- time-wise the sentence will only be on Count I.” The prosecutor agreed the term for count II must be stayed and announced his “agree[ment] with the Court that I don’t think I can in good faith argue 654 doesn’t apply in this case.” Inexplicably, the court then ordered that the sentence imposed for count II would be served concurrently. That was error, as the People concede. It also was error to impose the upper term for count II without citing circumstances found true by the jury or admitted by defendant.
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court for resentencing consistent with this opinion and the holding in People v. Sandoval, supra, 41 Cal.4th at pages 846 and 849-852. In all other respects, the judgment is affirmed.
We concur: DAVIS, J., NICHOLSON, J.