Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. TF004654A, Gary R. Witt, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Defendant Loyd William Nichols was convicted of grand theft and misdemeanor marijuana possession after he was caught stealing copper electrical cord from the yard of a business. The marijuana in his pocket was wrapped in a receipt from a metal recycling plant. He received a six-year prison sentence and was ordered to pay more than $150,000 in restitution. He now claims instructional error and insufficient evidence on the marijuana charge. He also challenges the restitution order, contending that the bulk of it was for losses not shown to be connected with his criminal conduct. Finally, he asserts that his sentence is in conflict with the United States Supreme Court’s recent decisions in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We reverse the conviction of marijuana possession, vacate the restitution award, remand for recalculation of that award, and affirm the remainder of the judgment.
FACTUAL AND PROCEDURAL HISTORIES
Richard Killian and Ken Kuzminski, employees of Nabors Drilling, arrived at one of the company’s stockyards on the morning of January 26, 2006, to take inventory. After entering the fenced yard through a gate, they spotted defendant inside the fenced area. He was dragging some electrical cord toward the back of the yard. Killian and Kuzminski called out. Defendant dropped the cord and fled in the direction he had been dragging it.
Killian and Kuzminski gave chase. When they reached the back of the yard, defendant was gone. They found a hole cut in the chainlink fence. Near the hole were additional pieces of electrical cord and some plugs. Kuzminski called the sheriff’s department.
While Killian and Kuzminski were waiting at the gate for the deputies to arrive, defendant walked by on the other side of the street. Killian asked him if he was the person they had just seen in the yard. Defendant said yes. Killian informed him that the police had been called, so defendant began to run away. Moments later, a sheriff’s patrol car arrived.
Deputy Sheriff Cory Pierce told defendant to stop. He surrendered immediately, placing his hands on his head before being told to do so. Deputy Pierce arrested him. In defendant’s pants pocket, Pierce found a receipt from J & D Recycling, showing a sale of copper wire. Folded inside the receipt was a “green, leafy substance” which Pierce “suspected was marijuana.”
Pierce, Killian, and Kuzminski observed extensive damage in the yard. The cords had been cut from many pieces of electrical equipment. Many severed pieces of cord, in addition to the one defendant had dropped, were on the ground in the yard. Some other cords that had been cut from the equipment were gone.
The district attorney filed an information charging three counts. Count one was grand theft (Pen. Code, § 487, subd. (a) ). Count two was vandalism (§ 594, subd. (b)(1)). Count three was possession of not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). In connection with counts one and two, the information further alleged pursuant to section 667.5, subdivision (b), that defendant had served six prior prison terms.
Statutory references are to the Penal Code unless noted otherwise.
At trial, the prosecution based its marijuana-possession case on Deputy Pierce’s testimony. He testified that the receipt in defendant’s pocket was “folded into a square in a sort of bindle-type way.” The shape in which it was folded caused him to suspect that it contained a controlled substance. He unfolded the paper and found the green, leafy substance. Although not formally offered or qualified as an expert, he stated that he received training in the police academy on identifying marijuana and had identified various controlled substances during his two years as a deputy. Explaining the characteristics he had been trained to identify, he said, “Generally, it has, like, a crystallized substance on the leafy material. Also, there is a strong odor to the substance.” Finally, he said, “I believe it was marijuana” when asked to identify the substance based on his training and experience. Deputy Pierce also stated that defendant told him the substance “was weed, which is a street name for marijuana.”
Killian and Kuzminski described the damage to the equipment in the yard. Sometime before January 26, Killian had seen the equipment in the yard. It was all intact at that time. On January 26, after defendant fled, the cords were cut off of many pieces of equipment. Some were lying on the ground, away from their usual locations. Marks in the dust on the ground showed that they had been dragged across the yard. Other cords were missing. One cord had been moved partially through the hole in the fence and left there. Kuzminski testified that 60 or more cords had been cut.
Kuzminski also prepared a written estimate of the damage discovered in the yard on January 26. The cost to replace missing items and repair damage was $106,405.
Apart from defendant’s presence on the scene holding one of the severed cables, facts connecting defendant to the extensive damage were scant. Footprints matching his shoes were found in several places in the yard, but he had no tools with which he could have severed the cords or cut the hole in the fence, and no car or other vehicle with which he could have hauled all the severed cords away. There were tire tracks on an access road outside the fence, but none of the witnesses could say how old they were. The severed cords left lying in the yard weighed hundreds of pounds. Further, although Killian had seen the equipment undamaged before the date of defendant’s arrest, he did not say when he had seen it. Kuzminski testified that he did not normally work at this yard. Gear had been stolen from the yard in a similar manner in the past.
The incident was not the first time defendant had obtained copper for recycling. A sheriff’s department detective testified that he conducted an investigation of the records of some local scrap metal recycling plants. These records showed that defendant had sold copper to two plants on a total of five occasions. He sold 1,045 pounds in one transaction and smaller amounts in the others. Defendant denied involvement in these transactions.
The jury found defendant guilty of grand theft and marijuana possession and not guilty of vandalism. He waived jury trial on the prior-prison-term allegations; the court found three of them true and three not true.
The court sentenced defendant to the three-year upper term for grand theft. It also imposed enhancements of one year for each of the three prior prison terms, making an aggregate sentence of six years. For marijuana possession, the court considered imposing a $100 fine but decided not to do so.
The court imposed victim restitution. For reasons not explained in the record, at the sentencing hearing the amount claimed by Nabors Drilling increased to $153,180 from the $106,405 claimed at trial. Over defendant’s objection that the figure was based on conduct of which he was acquitted, the court awarded the full amount.
DISCUSSION
I. Marijuana possession
The marijuana-possession conviction was not supported by sufficient evidence. Specifically, the prosecution did not prove defendant possessed a usable quantity. Even if there had been sufficient evidence, the conviction would have to be reversed because the court failed to instruct the jury that it was required to find a usable quantity.
A. Insufficient evidence
When the sufficiency of the evidence is challenged on appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The offense of simple possession of a controlled substance has four elements: (1) the defendant had dominion and control of a controlled substance; (2) the substance was in an amount usable for consumption or sale; (3) the defendant knew the substance was present; and (4) the defendant knew of the nature of the substance. (People v. Camp (1980) 104 Cal.App.3d 244, 247-248.) Each element may be proven circumstantially. (Ibid.) The Supreme Court considered the usable-amount element at length in People v. Leal (1966) 64 Cal.2d 504. It concluded that the Legislature did not intend to punish possession of useless traces or residue. (Id. at p. 512.) Here, the prosecution’s case was deficient with respect to this element.
The evidence was Deputy Pierce’s testimony that the receipt found in defendant’s pocket contained a green, leafy substance, that he believed the substance was marijuana, and that defendant told him it was “weed.” There was no evidence of how much of the substance was present. Either factual testimony or opinion testimony about this could have been sufficient. For instance, a witness could have testified that he or she weighed the substance and found there were so many grams. Or a witness could have said that, although the weight was unknown, the amount appeared usable based on the witness’s training and experience. Testimony that there was enough to make a cigarette or a usable fraction of a cigarette, or enough to occupy some significant fraction of the bowl of a pipe, might have sufficed. There was no such testimony. Deputy Pierce’s testimony indicated that there was enough for him to perceive it, but that alone is not a circumstance from which a usable quantity can be inferred. So far as the appellate record shows, the jury was not shown the marijuana or a photograph of it, so it could not judge for itself whether the quantity was usable. The receipt was folded “in a sort of bindle-type way,” perhaps indicating that someone intended it to contain a usable quantity at some time, but this does not support an inference that it contained a usable quantity when it was found in defendant’s possession. In sum, the evidence was consistent with the presence of a usable quantity, but it was equally consistent with the presence of only a few leaf fragments. A reasonable jury could not find beyond a reasonable doubt that a usable quantity was proven.
The People quote People v. Simmons (1971) 19 Cal.App.3d 960, 965: “[T]he usable amount rule ‘is limited in its application to situations where the possession of narcotics were [sic] of minute traces or residue only.’” The Simmons court “decline[d] to speculate … that ‘there is still the probability in the absence of testimonial evidence to the contrary, that the amount of narcotic involved was deminimis,’ for we are bound to presume in support of the judgment the existence of every fact the trial judge could reasonably deduce from the evidence.” (Id. at p. 966, fn. 2.) The People argue that, as in Simmons, here there was no evidence that the amount was not usable and a reasonable fact-finder could have inferred that it was usable.
Simmons is distinguishable. The passage from Simmons reads more fully as follows:
“‘People v. Leal is limited in its application to situations where the possession of narcotics were [sic] of minute traces or residue only.’ [Citation.] In the absence of any suggestion in the record that only ‘minute traces or residue’ were involved, the testimony of Officer Niles that the balloon contained a brownish powdery ‘substance,’ the stipulation that ‘the powder’ in the balloon was heroin and the testimony of the station attendant that the appearance of the balloon was such that he thought ‘it contained something,’ are sufficient to establish that the heroin defendant possessed ‘created a potentiality for future use or sale.’” (People v. Simmons, supra, 19 Cal.App.3d at pp. 965-966, fn. omitted.)
The evidence in Simmons contrasts significantly with that in this case. Here, no witness testified that, by looking at the outside of the container, he could tell something was inside. Evidence of that kind, combined with the other circumstances, might well have sufficed to establish a usable quantity in this case just as it did in Simmons. It was not presented here.
Since the evidence here could not support an inference about the quantity possessed, the People miss the mark in stating that defendant “cites no evidence that the amount of marijuana was deminimis.” A usable quantity is an element of the offense, so the prosecution has the burden of proving a usable quantity; defendant does not have the burden of proving the quantity was not usable. The court’s remark in Simmons about the “absence of any suggestion in the record” that the quantity was minute (People v. Simmons, supra, 19 Cal.App.3d at pp. 965-966) makes sense only when combined with the evidence that the quantity was enough to make the balloon appear to contain something. The Simmons court did not require the defendant to prove the nonexistence of the element.
We need not discuss defendant’s argument that there also was insufficient evidence that the substance was, in fact, a controlled substance, i.e., marijuana.
B. Jury instructions
Even if the evidence of marijuana possession had been sufficient, we would be bound to reverse the conviction. The court committed prejudicial error when it failed to instruct the jury on the usable-amount element of the offense.
In a criminal trial, the court must give an instruction requested by a party if the instruction correctly states the law and relates to a material question upon which there is evidence substantial enough to merit consideration by the jury. (People v. Avena (1996) 13 Cal.4th 394, 424; People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on other grounds by People v. Barton (1995) 12 Cal.4th 186, 201.) The court must also give some instructions sua sponte:
“‘[E]ven in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial. “The most rational interpretation of the phrase ‘general principles of law governing the case’ would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court.” [Citations.]’” (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)
The court has no duty to give an instruction if it is repetitious of another instruction the court gives. (People v. Turner (1994) 8 Cal.4th 137, 203, overruled on other grounds by People v. Griffin (2000) 33 Cal.4th 536, 555, fn. 5.) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.”’” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Failure to give an instruction, even if it was required under the above principles, warrants reversal only if there is a reasonable probability that the defendant would have obtained a more favorable outcome if it had been given. (People v. Breverman (1998) 19 Cal.4th 142, 178.)
The People argue that defendant waived this issue when he failed to object to the instructions at trial. This is incorrect. A trial court in a criminal case is required—with or without a request—to give correct jury instructions on the general principles of law relevant to issues raised by the evidence. (People v. Michaels, supra, 28 Cal.4th at pp. 529-530.) Further, an appellate court can address an incorrect instruction to which no objection was made at trial if the instruction impaired the defendant’s substantial rights. (§ 1259.)
On its own motion, the court used a modified version of CALJIC No. 16.030 to instruct the jury on the elements of marijuana possession. The pattern instruction includes the following list of elements:
“In order to prove this crime, each of the following elements must be proved:
“1. The defendant exercised control over or the right to control a certain controlled substance;
“2. The substance was [concentrated cannabis] [more than 28.5 grams of marijuana, other than concentrated cannabis,] [not more than 28.5 grams of marijuana, other than concentrated cannabis];
“3. The defendant knew of its presence;
“4. The defendant knew that the substance had a narcotic character; [and]
“5. The substance was in an amount sufficient to be used as [concentrated cannabis] [marijuana] [; and] [.]”
The offense at issue in this case was a violation of Health and Safety Code section 11357, subdivision (b). CALJIC No. 16.030 is designed only for subdivisions (a), (c), and (d) of that section, so the court needed to modify the instruction. In doing so, it deleted all of element number five: “The substance was in an amount sufficient to be used as [concentrated cannabis] [marijuana].” Explaining this action to the parties, the court said, “I’m going to delete 5 because we are not dealing with cannabis.” Consequently, the jury was not instructed that it was required to find a usable amount of marijuana.
The People concede that the court should not have deleted element five, but should instead have deleted only the words “[concentrated cannabis]” from it. They contend, however, that the instructions as a whole were still adequate because they included instructions pursuant to CALJIC Nos. 12.32 and 12.33, which explained ways in which a usable amount could be found. As given, these instructions stated:
“Proof that the controlled substance marijuana, if any, was in an amount sufficient to be used as a controlled substance marijuana may be established:
“1. By expert testimony, or
“2. By evidence that the amount possessed, if any, was sufficient to be used in any manner customarily employed by users of the substance.
“In order to establish that the amount, if any, of the controlled substance marijuana possessed by the defendant was a sufficient amount to constitute a violation of the law, it is not necessary that the People prove:
“1. The amount possessed, if used, would have the effect it is ordinarily expected to produce, referred to as ‘narcotic effect,’ or
“2. The narcotic ingredient in the particular substance possessed was capable of producing a ‘narcotic effect.’”
This did not suffice to inform the jury of its duty to determine beyond a reasonable doubt whether defendant possessed a usable quantity of marijuana. The People’s view is that the instructions on how to find a usable quantity implied that a usable quantity was required to be found. This places an unreasonable expectation upon the jury. The jury is required to understand and apply all the instructions, but it will naturally use the instruction setting forth the elements of the offense as its touchstone. We must assume the jurors will believe that, once they have found all the elements in the instruction defining the offense, they have found the defendant guilty. After they have done this, they cannot be expected to search through the instructions for additional elements implied elsewhere which might compel acquittal. In this instance, the list of elements was separated from the supposed implied element by five pages of the trial transcript and 25 pages of the written instructions. Due to the omission of the usable-quantity element from the definition of the offense, the instructions as a whole were erroneous.
The error was not harmless. Even if the evidence relevant to the quantity of marijuana was sufficient, it was too weak to provide the necessary assurance that there was no reasonable probability of acquittal absent the error. In other words, if the jury had been told it was required to find a usable quantity of marijuana, there is a reasonable probability it would have found that Deputy Pierce’s testimony failed to establish this fact.
II. Restitution
Defendant argues that the restitution order should be vacated because it was based on losses not shown to have been caused by his criminal conduct. We agree. The court stated that the order was based on the theft of which defendant was convicted, not the vandalism of which he was acquitted; but the evidence did not support an inference that defendant’s conduct in committing the theft caused $153,180 in losses.
The court ordered restitution pursuant to section 1202.4, subdivision (f), which provides:
“Except as provided in subdivision (q), in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.”
Subdivision (f)(3) further provides:
“To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, all of the following: [¶] … Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.”
The statute makes clear that restitution is mandatory absent extraordinary circumstances, that it must be based on economic losses caused by the defendant’s criminal conduct, and that the amount must be based on a showing made to the court. It says nothing about the evidentiary standard the showing must satisfy or the standard by which an appellate court should review the order. It has been held, however, that the order should be upheld absent an abuse of discretion and that the trial court does not abuse its discretion if there is “a factual or rational basis” for the amount of restitution ordered. (People v. Hudson (2003) 113 Cal.App.4th 924, 927.) The court’s “discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.” (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) Finally, “[i]f there is no substantial evidence to support the award, and assuming no other rational explanation, the trial court will have obviously abused its discretion.” (Id. at p. 993.)
Defense counsel argued at sentencing that a restitution order based on all the claimed damage would exact restitution for conduct underlying the vandalism or malicious mischief charge, of which he was acquitted. This led to the following exchange:
“THE COURT: Let me interrupt you at this time. Even though a person can be acquitted of doing malicious mischief, they can still be responsible for the damage that may occur when they go ahead and take the property. For instance, somebody breaks in a house and takes a safe, they have to break out a wall to remove the safe, it might not be malicious mischief damage to the house for that safe, but nonetheless damage occurs when they do that to facilitate moving the safe out of the house. I don’t see this being any different, when you go into a storage yard to get the copper from all the cables, and in so doing, you damage the machine.
“MR. BEGLIN [defense counsel]: I understand that, but your Honor our position is that he was seen pulling one wire. That’s it. How all the other stuff occurred, none of the witnesses could say.
“Our position is he will pay—we would like the Court to order he pays $400 for the one wire, and all this other stuff, because the jury specifically found that he did not do it; he should not be held responsible for it.
“THE COURT: The jury found that he didn’t commit malicious mischief. The jury did find that he committed grand theft.
“MR. BEGLIN: I understand.
“THE COURT: And whether there’s one, two or three people participating at the time that the officers got there and the workers got there, only Mr. Nichols was left, though I do recall from the testimony there were tire tracks in the road behind, so if any accomplice that he did have either before or during left him high and dry, but even if that person had been caught, on the criminal case, you’re jointly and severally liable for all the damage done, even if you’re the last and only person caught.
“MR. BEGLIN: I understand, but respectfully I think that’s just speculation. We covered that in front of a jury. We went into the fact, as I mentioned, this is physically impossible for this to have occurred the way he said it did, because all of the stuff they said was supposed to happen, they couldn’t prove. That’s my point here. [¶] They saw him carrying one wire. Nobody saw any cars, any bolt cutters; nothing. He’s pulling one wire, and that’s not worth 100 plus thousand dollars worth of damage .… [¶] So we would submit—we would stipulate, we agree with the Court if it were to order $400 restitution, but we’re rejecting—objecting to any order in addition to that.”
The court and parties discussed the possibility of conducting an evidentiary hearing on the matter, but agreed there was no further evidence to present. Defense counsel stated that defendant was “willing to have the Court just impose the judgment now and he can take that issue up on appeal, if he chooses.” The court agreed that “[i]t’s certainly an appealable issue.” Then it stated:
“I’m making my decision, based on the following factors: Number 1, I was the trial judge. I heard the evidence from both sides. I heard the amount of damage, that the only person that was caught at the time was Mr. Nichols, but there certainly was a lot of damage done in removing the property for purposes of the grand theft.
“So I’m ordering restitution to the victim for damage occurring on the grand theft in my opinion is not inconsistent with the jury’s verdict of not guilty on the malicious mischief.
“If I’m wrong, I can be reversed as to this issue.”
We agree with the trial court’s opinion that the acquittal of vandalism did not, by itself, mean defendant could not be responsible for more than $400 in damage arising from the grand theft. As an abstract possibility, in spite of the acquittal, there could have been substantial evidence that defendant’s conduct in committing the theft caused all the damage. The question is whether there was any evidence or, absent evidence, any other rational explanation for the amount awarded. The court apparently did not ask or answer that question. The speculative possibility that there were accomplices who fled or the presence of tire tracks on an adjacent road did not constitute such evidence. The court said it “heard the evidence” and that “there certainly was a lot of damage done in removing the property for purposes of the grand theft,” but, so far as the appellate record discloses, there was no evidence that defendant or anyone working with him caused all this damage—or that, given the lack of tools, defendant even could have cut all the cords. Conceivably, defendant had already disposed of or hidden some tools when he was found, but this, like the accomplice theory, is speculation. There is no greater factual or rational basis in the record for either of these theories than there is for concluding that defendant came upon the scene of an earlier crime abandoned in mid-commission by parties unknown, tried to take some of the cut cords, and promptly was caught. This is particularly so in light of the facts that there was no evidence of when the two employee witnesses had last visited the yard and that the yard had been subject to previous thefts. In sum, there was nothing to distinguish this case from the situation in which a thief is caught stealing on the scene of previous thefts or attempted thefts about which nothing is known. It is similar to the case of a person caught holding the last piece of merchandise in a looted store. In that type of scenario, the thief’s presence on the scene, committing a theft, is not a factual or rational basis for finding that the thief’s conduct caused all the losses discovered at the time he is caught.
People v. Percelle (2005) 126 Cal.App.4th 164 is illustrative, though not quite on all fours with this case. Percelle rented a minivan from Service Rent-a-Car and never returned it. He stole a Discover card from Patricia Tilghman and a Visa card from Peter Karagiannis. Then he drove the minivan to Discount Cigarettes in San Jose on three occasions and used the cards to buy thousands of dollars worth of cigarettes. The store owners finally caught on and called police, who arrested Percelle at the store. Percelle was also charged with using a Visa card stolen from Tom Spade to rent a car from Payless Rent-a-Car; this car was also never returned until police found and impounded it. Spade’s stolen card was used for several additional transactions, including cigarette purchases in Livermore and purchases at Long’s and Walgreen’s drug stores. Percelle was convicted of stealing the Service car and fraudulently buying the San Jose cigarettes, but he was acquitted of the charge of stealing the Payless car. Nevertheless, the trial court ordered him to pay restitution to Spade for the Payless rental, the Livermore cigarettes, and the Long’s and Walgreen’s purchases on Spade’s card. (Id. at pp. 168-171, 179.)
The Court of Appeal reversed the order of restitution to Spade. The evidence linking Percelle to Spade’s stolen Visa card was the evidence supporting the charge that Percelle used the same card to steal the car from Payless, a charge of which Percelle was acquitted. (People v. Percelle, supra,126 Cal.App.4th at pp. 178, 180-181.) Consequently, the court stated, “there is no evidence that the unauthorized charges to Spade’s credit card were the result of any crime of which defendant was convicted.” (Id. at p. 181.)
The present case is not as clear as Percelle. In Percelle, the acquittal of the Payless car theft left no link at all between Percelle and the charges on Spade’s card. Here, although defendant was acquitted of the vandalism charge, he was still found on the scene of the vandalism and convicted of another crime, theft, to which the same losses as those underlying the vandalism charge might have been connected. This is, however, not enough. The link between the theft and the damage exceeding $150,000 remains speculative.
For all these reasons, we conclude that the trial court abused its discretion when it set the restitution amount. This does not necessarily mean the correct amount of restitution was $400. The trial court must determine the correct amount on remand. In doing so, it must apply the following standard: There must be a factual or rational basis for concluding that defendant’s criminal conduct caused a loss in the amount awarded.
III. Blakely/Cunningham
Defendant argues that the imposition of the upper term for grand theft contravened the United States Supreme Court’s decisions in Blakely, supra,542 U.S. 296, and Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. Our Supreme Court’s recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II) is dispositive of this issue and requires affirmance of the sentence.
In Blakely, the United States Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with “‘deliberate cruelty’” and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: “‘Other than the fact of 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.’” (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the state’s sentencing law did not allow the sentence to exceed 53 months without judicial fact-finding. “Our precedents make clear … that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Id. at p. 303.) The court continued:
“In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.” (Blakely, supra, 542 U.S. at pp. 303-304 .)
On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law as it stood then was erroneous, therefore, unless it was supported by prior convictions, facts found by the jury, or facts admitted by the defendant.
It has since been amended in response to Cunningham. (Stats. 2007, ch. 3; see Black II, supra, 41 Cal.4th at p. 808, fn. 2.)
After defendant filed his opening brief in this case, but before he filed his reply brief, the California Supreme Court filed its opinion in Black II. It held that the upper term imposed in that case was not erroneous under Cunningham because it was authorized by the defendant’s prior offenses and the jury’s finding that the defendant committed the offense by means of force and fear. (Black II, supra, 41 Cal.4th at pp. 816-817, 818.) Whether the trial judge would have imposed the upper term based on these factors alone was irrelevant; the question was only whether it could have done so under the sentencing law. It could: California’s determinate sentencing law allows the trial court to impose the upper term based on a single aggravating factor. Each of these two factors authorized the upper term independently under California law and each was independently established by means consistent with the Sixth Amendment as interpreted in Blakely and Cunningham. The presence of either one alone would have been sufficient to render the upper term constitutional. (Black II, supra, at pp. 813, 814-815, 820.)
Black II makes it clear that the trial court need not have relied expressly on one of the factors approved by Blakely and Cunningham so long as one of those factors was present in the record and the court was aware of it. The trial court in Black did not assert at sentencing that it was using the defendant’s prior convictions as an aggravating factor in support of the upper term. Instead, it said it was imposing the upper term because of “‘the nature, seriousness, and circumstances of the crime.’” (Black II, supra, 41 Cal.4th at p. 816.) It also stated that it considered “other aggravating circumstances set out in the district attorneys’ sentencing brief.” These included the defendant’s criminal history. The probation report included defendant’s criminal history also. This was sufficient even though the trial court did not mention defendant’s criminal history explicitly. (Id. at p. 818.)
Further, where a factor properly established under the Sixth Amendment is present, the court’s reliance on other factors that would not satisfy the Sixth Amendment on their own does not undermine the sentence:
“[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
In light of all this, we conclude there was no constitutional error in the imposition of the upper term here. After denying probation, the court stated the reasons for its sentencing decision as follows:
“There [are] no circumstances in mitigation. [¶] Circumstances in aggravation, the defendant’s prior convictions as an adult are numerous. [¶] He’s served multiple prior prison terms and multiple terms in the California Rehabilitation Center. [¶] His prior performance on misdemeanor and felony probation and state parole was unsatisfactory, in that he continued to re-offend. [¶] And although his sentence is going to be enhanced by the prior prison term enhancements, the fact that the felony convictions, where he went to CRC, that’s not adding to his time, that certainly can be considered as a factor in aggravation. [¶] I find that the upper term is justified, based on all the facts and circumstances presented to me in the jury trial in this case, as well as the record.”
The probation report, which the judge read and considered, lists seven prior convictions of offenses committed in California and four of offenses committed in Florida. The California offenses are three convictions of drug trafficking (Health & Saf. Code, § 11352); two of drug possession (Health & Saf. Code, § 11350); one of being under the influence of drugs (Health & Saf. Code, § 11550, subd. (a)); and one of escaping from prison (§ 4530, subd. (b)). The Florida offenses are two convictions of disorderly intoxication, one of criminal mischief, and one of resisting arrest. The report also shows five violations of probation and three violations of parole.
Under Black II, this record is sufficient to support the upper term. The aggravating factors the court specified presupposed prior convictions: numerous prior convictions; prior prison terms and terms in the California Rehabilitation Center; and unsatisfactory performance on prior probation and parole. At least one of these—defendant’s numerous prior convictions—cannot meaningfully be distinguished from Blakely’s formulation, approving the use of “‘the fact of a prior conviction’” (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several. In fact, a report of numerous or increasingly serious prior convictions in the probation report and the prosecutor’s brief was just what the Supreme Court found adequate in Black II, rejecting the argument that this is not the same thing as the simple fact of a prior conviction:
“Defendant contends he was entitled to a jury trial on the aggravating circumstance of his prior criminal history because, even if the trial court properly may decide whether a defendant has suffered a prior conviction, a jury must determine whether such convictions are numerous or increasingly serious. Defendant, however, reads the ‘prior conviction’ exception too narrowly.” (Black II, supra, 41 Cal.4th at p. 819.)
The court in this case also referred to “all the facts and circumstances,” indicating that it might have relied on factors other than defendant’s criminal record. As we have said, however, the court’s reliance on factors that would not satisfy the Sixth Amendment on their own does not vitiate the sentence if other factors were present upon which the sentence could constitutionally be based and the court was aware of those factors.
Defendant argues that the prior-conviction exception to the Apprendi Blakely-Cunningham doctrine is likely to be overruled by the United States Supreme Court. He admits, however, that he can do no more than preserve this argument for further review by asserting it in this court, since the exception still constitutes binding authority.
In sum: Because the upper term was authorized by defendant’s prior convictions, the court did not err under Blakely and Cunningham in imposing the upper term.
DISPOSITION
The conviction of count three is reversed. The imposition of $153,180 in victim restitution is vacated. The case is remanded and the trial court shall recalculate the restitution amount as stated in Part II of this opinion, ensuring that there is a factual or rational basis for concluding that defendant’s criminal conduct caused losses in the amount awarded. The judgment is affirmed in all other respects.
WE CONCUR: Vartabedian, Acting P.J., Harris, J.