Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Los Angeles County Ct. No. BA243479. David M. Mintz, Judge.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Dane R. Gillette and Robert R. Anderson, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
INTRODUCTION
Appellant Marta Ramirez challenges her voluntary manslaughter conviction on the ground the trial court’s imposition of the upper term for a gun-use enhancement violated her right to a jury trial. We agree and remand for resentencing.
BACKGROUND AND PROCEDURAL HISTORY
Appellant fired one close range shot at her husband’s head and two contact shots at his chest as he lay asleep in their bed. She then turned herself in at a sheriff’s substation.
A jury acquitted appellant of first and second degree murder, but convicted her of voluntary manslaughter. It also found she personally used a gun in the commission of the offense (Pen. Code, § 12022.5, subdivision (a)). Appellant was sentenced to 16 years in prison.
In June 2006, we issued an opinion affirming appellant’s convictions and sentence. (People v. Ramirez (June 13, 2006, B183237) [nonpub. opn.]). Relying on People v. Black (2005) 35 Cal.4th 1238, we rejected appellant’s argument that her right to a jury trial was violated by the court’s finding of aggravating factors at sentencing.
On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of its decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), which overruled People v. Black, supra, 35 Cal.4th 1238. Pursuant to the mandate of the United States Supreme Court, we have recalled the remittitur.
DISCUSSION
The trial court imposed the middle term of six years for manslaughter, but the upper term of 10 years for the gun-use enhancement. It explained that it found the following aggravating factors with respect to appellant’s gun use: appellant fired the gun three times at very close range, the victim was particularly vulnerable at the time because he was asleep, appellant occupied a position of trust with respect to the victim, and she killed him in a place that potentially left his body for the children to discover.
Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the imposition of the upper term for the gun-use enhancement violated due process, in that it was based upon facts found by the court, not a jury. Appellant is correct. Cunningham, supra, 549 U.S. 270 overruled People v. Black, supra, 35 Cal.4th 1238, to the extent it held that the selection of an upper term under California’s determinate sentencing law did not violate Apprendi or Blakely. None of the factors cited by the trial court in support of its selection of the upper term for the enhancement fall within the recidivism exception to Apprendi. None of the factors may be fairly viewed as factors found by the jury. Accordingly, the trial court erred by imposing an upper term in reliance upon these factors.
DISPOSITION
The sentence is vacated and the case is remanded for resentencing. In all other respects, the judgment is affirmed.
I concur: FLIER, J.