Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA291350, Robert Perry, Judge.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, G. Tracey Letteau and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Juan Pacheco appealed from the judgment entered following his conviction by jury on two counts of attempted second degree robbery and two counts of attempted extortion, with findings the offenses were committed for the benefit of, at the direction of or in association with a criminal street gang. Pacheco contended that he was sentenced in violation of his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). We previously agreed with Pacheco and imposed a midterm sentence instead of the upper term on one count for a reduction of one year in his aggregate sentence. The California Supreme Court then transferred this matter back to this Court with directions to vacate our prior decision and to reconsider the cause in light of the decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Pacheco was charged by amended information with two counts of attempted second degree robbery (Pen. Code, §§ 211, 664) (counts 1 and 2) and two counts of attempted extortion (§§ 518, 664) (counts 3 and 4) against Maria Tzintzun (counts 1 and 3) and Carlos Bermejo (counts 2 and 4). The amended information specially alleged with respect to the attempted robbery charges in counts 1 and 2 a firearm enhancement under Penal Code section 12022.53, subdivisions (b) and (e)(1), and with respect to the attempted extortion charges in counts 3 and 4 a firearm enhancement under section 12022.5, subdivision (a)(1). A criminal street gang enhancement was alleged as to all counts (§ 186.22, subd. (b)(1)(A)).
Statutory references are to the Penal Code.
2. Summary of the Evidence Presented at Trial
a. The People’s Evidence
Maria Tzintzun, her husband Juan Bermejo, and their family lived in the Del Rio Housing Project in Los Angeles. On the night of March 26, 2005, Tzintzun and Bermejo heard a loud noise on the street and went to investigate what they thought was a traffic collision near their house. They came upon two damaged cars and a group of men, including Pacheco, beating a lone man. Tzintzun attempted to stop the assault by standing between the assailants and the victim. Pacheco demanded to know why Tzintzun was protecting the victim and who would pay for the damages resulting from the traffic collision. To prevent further harm to the victim, Tzintzun agreed to pay for the damages. The victim fled before police arrived. Officers arrested the driver of the other car on outstanding warrants and Tzintzun returned home with Bermejo.
At around 1:00 a.m. the next day, Tzintzun, Bermejo, and some family members answered a knock on the front door. At the door were Pacheco and Ratha Chhuk, who had also been at the scene of the traffic collision. Chhuk spoke in English, demanding to know the whereabouts of the beating victim. Pacheco translated what Chhuk was saying to Tzintzun and Bermejo into Spanish. Tzintzun explained that the beating victim did not live with them. Chhuk produced a gun, pointed it at the couple and their family, and said that “everybody was going to die that night.” Chhuk and Pacheco demanded $5,000. Tzintzun told them that she did not have any money. Pacheco, still translating for Chhuk, told them to “[b]eware of the consequences.” Chhuk and Pacheco left, but when Pacheco was about 40 feet from the front door, he pointed a gun at her. Tzintzun reported the incident to police.
Tzintzun and Bermejo independently identified Pacheco and Chhuk as the men who threatened them with harm and demanded money at gunpoint. Police were subsequently involved in a high speed chase of a car that nearly struck a police unit. Pacheco was a passenger in the car. He along with the driver and another passenger were taken into custody.
Los Angeles Police Department Officer Anthony Saenz testified as a gang expert that Pacheco had identified himself to Saenz as a member of the Oriental Boys gang and was in the car with self-admitted gang members when he was arrested. Saenz confirmed that the Pueblo Del Rio Housing Project was rife with gang activity and was claimed by the Five Duece Pueblo Bishops and the Oriental Boys, who coexist as Blood Gangs. The primary activities of the Oriental Boys gang were vandalism, robbery, narcotics sales, extortion and instilling fear in the community. After a hypothetical based on the facts of the case, Saenz opined the attempted robbery and extortion were committed to benefit the gang.
b. The Defense Evidence
Pacheco testified in his defense that he had never been a gang member and had never told police that he belonged to a gang. In the afternoon of March 26, 2005, he was across the street from the Pueblo Del Rio Housing Project after visiting a friend when he saw Ratha Chhuk. Pacheco agreed to accompany Chhuk to the home of a Spanish-speaking family and to translate into Spanish that Chhuk wanted the family to repay a debt. Pacheco translated Chhuk’s request for money and was told there was no money to pay off the debt. After some additional conversation, Pacheco and Chhuk left. Pacheco denied that either he or Chhuk had possessed or pointed a gun at anyone or that he knew Chhuk was a gang member, or that Pacheco had been at the scene of the traffic collision.
3. The Jury’s Verdict and the Trial Court’s Sentence
The jury convicted Pacheco of the attempted second degree robbery charges in counts 1 and 2 and the extortion charges in counts 3 and 4. It found true the specially alleged criminal street gang enhancement as to all counts, but found not true the specially alleged firearm enhancements as to all counts.
At sentencing the trial court considered Pacheco’s probation report and identified two aggravating factors – Pacheco’s pattern of increasingly serious conduct based on his prior arrests and apparent “convictions” (Cal. Rules of Court, rule 4.421(b)(2)), and the victims’ particular vulnerability (rule 4.421(a)(3)) – and no mitigating factors.
References to rule or rules are to the California Rules of Court.
The probation report reflects a juvenile petition alleging the offense of carrying a concealed firearm and two adult criminal cases charging narcotics possession that were pending at the time.
Defense counsel argued Pacheco should receive probation or, in the alternative, he should be sentenced to the lower term based on his insignificant criminal history and his limited involvement in the current offenses. Following argument, the trial court stated it would use the attempted second degree robbery offense of count 1 as the principal term and would impose the upper term due to Tzintzun’s particular vulnerability and the absence of mitigating factors. The court sentenced Pacheco to an aggregate state prison term of eight years, eight months: The upper term of three years on count 1 for the attempted second degree robbery of Tzintzun, plus five years for the criminal street gang enhancement, plus eight months on count 2 (one-third the middle term of two years) for the attempted second degree robbery of Bermejo. (§§ 213, subd. (2)(b), 18.) Sentences were stayed pursuant to section 654 on counts 3 and 4 for the attempted extortion of the same victims.
DISCUSSION
In this appeal, Pacheco initially argued the trial court’s imposition of an upper term sentence for attempted second degree robbery (count 1) based on facts neither found by a jury to be true beyond a reasonable doubt nor admitted by Pacheco violated his right to a jury trial under Blakely, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).
In Apprendi and Blakely, the United States Supreme Court determined: “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.” (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301.) In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held California’s determinate sentencing law did not violate Apprendi and Blakely.
With Black I, supra, 35 Cal.4th 1238, as controlling authority, the trial court sentenced Pacheco to the upper term of three years on count 1 (the first attempted second degree burglary count) based on the “vulnerability of the victim.” After initial briefing in this case was completed, the United States Supreme Court issued its opinion in Cunningham, supra, 549 U.S. __ [127 S.Ct. 856]. We requested and received supplemental briefing from the parties addressing the impact of Cunningham on this case. Under the Supreme Court’s decision in Cunningham, supra, 127 S.Ct. at page 869, “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” Based on Cunningham, and because the trial court had relied exclusively on a fact that had to have been found by a jury to impose the upper term on Pacheco, we filed an opinion reversing the upper term sentence and remanded the matter to the trial court.
Thereafter, the California Supreme Court then issued its second opinion in People v. Black. In Black II, supra, 41 Cal.4th at page 813, our Supreme Court held the presence of a prior conviction which requires no jury finding makes a defendant “eligible” for an upper term sentence and justifies the court’s use of other aggravating factors when deciding whether to impose an upper term sentence. (See also People v. Cardenas (2007) 155 Cal.App.4th 1468, 1478-1479.) In light of Black II, supra, 41 Cal.4th 799, as well as People v. Sandoval, supra, 41 Cal.4th 825, we were directed to vacate our prior decision and reconsider this matter in light of these two cases.
The Attorney General argues there was no Cunningham violation in this case because the trial court relied on Pacheco’s “criminal history” and, as a result, he was “eligible” for the upper term. We disagree. As we previously noted, the trial court indicated its “tentative” to find as an aggravating circumstance (in addition to the victim’s vulnerability) the fact that Pacheco “has a pattern of increasingly serious conduct” in light of “some prior narcotics arrests and apparent convictions.” (Italics added.) However, as summarized above, the probation report indicated that the narcotics matters were pending, and the trial court heard argument in this regard.
The prosecutor did not refer to the narcotics arrests, and, although defense counsel referred to one case as “on Prop 36,” the trial court ultimately stated it would impose the upper term sentence on count 1 based on the absence of mitigating circumstances and the victim’s vulnerability: “I find the vulnerability of the victim is sufficient to warrant the imposition of a high term of three years.”
The language of Black II strongly suggests the trial court must have relied on the defendant’s prior criminal record as one of its reasons for imposing the upper term and thus “authorizing” that upper term and permitting the trial court to use otherwise constitutionally impermissible factors in reaching its decision. (Black II, supra, 41 Cal.4th at p. 818, citing Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868]; People v. Cardenas, supra, 155 Cal.App.4th at p. 1481, italics added [“Nothing in Black II suggests the mere fact one or more prior convictions repose unnoticed or disregarded by the trial court, in the probation report is enough to make the defendant ‘eligible’ for a high term sentence within the meaning of that opinion”].) As the Black II court emphasized, “‘[o]n appellate review, [it is the] trial court’s reasons for its sentencing choice’ that are examined, and the evidence supporting that reason or reasons—not evidence it either rejected or ignored.” (People v. Cardenas, supra, 155 Cal.App.4th at p. 1482, italics added.) Indeed, section 1170, subdivision (b) and rules 4.406(a) and 4.406(b) of the California Rules of Court require the trial court to state on the record its reasons for imposing the upper term. (Ibid.)
We may find harmless the imposition of an upper term based on a factor which should have gone to the jury if we can conclude beyond a reasonable doubt that had the factor been submitted to the jury, the jury would have found it true. (Washington v. Recuenco (2006) 548 U.S. __ [126 S.Ct. 2546, 2551-2553]; Sandoval, supra, 41 Cal.4th at pp. 838-839.) Here, the trial court relied solely on its finding that the vulnerability of the victim supported imposition of the upper term. While a jury reasonably could have made a true finding beyond a reasonable doubt as to the “particular vulnerability” of the victim involved in count 1, we cannot conclude beyond a reasonable doubt that a jury would have done so. (See Sandoval, supra, 41 Cal.4th at p. 842 [“The record . . . does not reflect such a clear-cut instance of victim vulnerability that we confidently can conclude the jury would have made the same findings, as might be the case if, for example, the victims had been elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable”].) Because we cannot find the constitutional error harmless, it follows that the sentence must be vacated and the matter remanded for resentencing as set forth in the Supreme Court’s decision in Sandoval, supra, 41 Cal.4th at pages 846 through 853.
DISPOSITION
The sentence is vacated and the cause remanded to the trial court with directions to conduct a new sentencing hearing and sentence Pacheco in accordance with the law. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.