Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06SCR03243, 02SCR5530
ROBIE, J.
Defendant Travis Earl Niles pled no contest to assault with a deadly weapon. On January 19, 2007, the trial court sentenced defendant to the upper term of four years on the assault count “by reason of [his] continued or [his] recently established anti-social behaviors.” Because we cannot determine whether the trial court intended its reference to defendant’s “anti-social behaviors” to be a reference to defendant’s prior convictions -- a legally sufficient aggravating circumstance -- or to something else that might have been a legally insufficient aggravating circumstance, we will remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from the sentencing in two cases: the assault count and a prior burglary case for which defendant was on probation. The facts for each case are as follows:
Case No. 02SCR5530
On April 13, 2002, F. O. reported to police that his personal checkbook had been taken from his office in Orland. After F. O. closed the account, he was notified that four checks had been cashed on the account. Three of the checks were made out to codefendants Cyndi Myers and Juan Flores.
On July 19, 2002, defendant pled guilty to three counts of second degree burglary and was sentenced to state prison for four years four months. Execution of the sentence was stayed and defendant was placed on formal probation for five years.
Case No. 06SCR03243
On August 14, 2006, around 2:00 a.m., defendant went to the trailer of his ex-wife, K. N. Defendant yelled and knocked on her door. K. N. went outside and spoke with defendant; then she saw him go into the trailer with a Mag flashlight in his hand.
Upon entering, defendant hit a male friend of K. N.’s on the legs numerous times with an eight-cell flashlight. The friend’s foot, calf, and hamstring area were injured.
On November 9, 2006, defendant pled no contest to the assault charge. On January 19, 2007, the trial court sentenced defendant to the upper term of four years for the assault count. Additionally, the court lifted the stay in case No. 02SCR5530 and sentenced defendant to a consecutive eight months for each of the three offenses in that case, for an aggregate term of six years in state prison.
DISCUSSION
Applying the Sixth and Fourteenth Amendments 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]that “[o]ther 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.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) Under this rule, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)
In People v. Black (2005) 35 Cal.4th 1238 (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, at p. 1244.)
In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d. 856], however, the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law does “violate[] a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, 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, at p. ___ [166 L.Ed.2d at p. 873], quoting Apprendi v. New Jersey, 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 sentenced defendant as follows: “Mr. Niles, at this time the Court . . . acknowledges receiving and considering the letter report and the probation officer’s report. The Court finds at this time that by reason of your continuing criminality and pleading to cases in Butte County that probation serves no useful purpose. I’m going to select Case Number 06SCR03243 as the principal term. I’m going to order that you serve a period of 4 years in state prison by reason of your continued or your recently established anti-social behaviors.”
Defendant contends imposition of the upper term violated his Sixth Amendment rights under Apprendi, Blakely, and Cunningham because the trial court’s stated reason for imposing the upper term -- his “‘continued or . . . recently established anti-social behaviors’” -- “could refer to factors falling outside of the three [valid] categories of aggravating circumstances” -- “(1) those found to exist by the jury; (2) those admitted by the defendant; or (3) those based upon the defendant’s record of prior convictions.”
In contrast, the People assert that the court “relied on [defendant’s] criminal history,” which was permissible under Cunningham.
We agree with defendant that the trial court’s description of the aggravating circumstance on which it was relying was “ambiguous” in that the court might have been referring to a circumstance on which it was not legally entitled to rely under Cunningham. For example, as defendant points out, the trial court’s reference to defendant’s “recently established anti-social behaviors” could have been intended as a reference to the circumstances of the assault. More specifically, the trial court could have been referring to an aggravating circumstance equivalent to one of those identified in the probation report -- “[t]he crime involved great violence, great bodily harm, or a threat of great bodily harm” -- which the trial court specifically acknowledged receiving and considering. Under Cunningham, however, for such a “fact” regarding the crime to be available as a valid aggravating circumstance, it would have had to have been found by the jury or admitted by defendant, which it was not. Under this scenario, the aggravating circumstance identified by the court would have been invalid.
At the same time -- as defendant acknowledges -- it is possible “the [trial] court could have been referring to [his] prior convictions.” That is what makes the court’s statement ambiguous. If the court’s reference to defendant’s “anti-social behaviors” was meant as a reference to defendant’s six prior felony convictions, then the court would have identified a valid aggravating circumstance under Cunningham.
In summary, we cannot determine whether defendant’s rights under Cunningham were violated because we cannot determine whether the trial court’s reason for selecting the upper term was an unclear reference to defendant’s numerous prior convictions -- which would have been valid under Cunningham -- or was a reference to something else, like the circumstances of the assault, which would have been invalid under Cunningham. Accordingly, we will vacate defendant’s sentence and remand for resentencing so that the trial court can cure this uncertainty by more clearly stating the basis for its imposition of the upper term.
On this point, we note that although a judge’s statement of reasons for a sentencing choice “need not be in the language of” the California Rules of Court (Cal. Rules of Court, rule 4.406(a)), in the context of imposing an upper term sentence, use of the language of the rules is the more prudent choice. If a court intends to rely on the number or increasing seriousness of defendant’s prior convictions -- a valid aggravating circumstance under rule 4.421(b)(2) of the California Rules of Court -- to impose an upper term sentence, it should simply say so. Doing so will avoid the ambiguity created in cases like this, where the court’s framing of its reason for imposing the upper term leaves us unable to determine whether the trial court relied on an aggravating circumstance that was valid under Cunningham.
In his opening brief, defendant raised a claim of Arbuckle error (People v. Arbuckle (1978) 22 Cal.3d 749), but in his reply brief he withdrew that claim after the People pointed out that he explicitly waived the right to be sentenced by the judge who took his plea.
DISPOSITION
Defendant’s convictions are affirmed; however, the sentence is vacated and the matter is remanded to the trial court for resentencing consistent with this opinion.
We concur: SCOTLAND, P.J., DAVIS, J.