Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C126894.
MEMORANDUM OPINION
Marchiano, P.J.
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 Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
Pursuant to this mandate, we recalled the remittitur. We re-examined our initial opinion in this case (People v. Spears (Feb. 10, 2006, A107984) [nonpub. opn.]), which remains on file with this court, and which we hereby incorporate by reference into this memorandum opinion.
In our initial opinion, we rejected defendant’s claim that the imposition of the upper term for firearm use violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) on the ground that the upper term was imposed based on facts neither admitted by defendant nor found true by the jury beyond a reasonable doubt. We relied on People v. Black (2005) 35 Cal.4th 1238 (Black I), filed after defendant’s opening brief, which held that Blakely did not apply to the California sentencing scheme.
Pursuant to the mandate of the United States Supreme Court, we reconsidered our initial opinion in light of Cunningham, which holds, contrary to Black I, that Blakely does apply to California sentencing law. Thus, an upper term may not be imposed based on facts unrelated to recidivism which were neither admitted by the defendant nor found true by the jury. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 860].)
The record in this case shows the murder victim was shot in the back, right arm, chest, upper abdomen, and chin, in the course of a robbery. Defendant testified and admitted that he first shot the victim in the back; the victim fell, and defendant then fired at least three more shots while he stood over him.
The trial court imposed the upper term for firearm use based on two aggravating factors: (1) the crime involved great violence and great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)); and (2) the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)). The trial court found factor (1) “based upon what was presented to the jury, that multiple shots were fired at the victim, which were over and above the violence necessary to carry out” the robbery or its attempt.
With regard to factor (2), the trial court noted “that the victim was vulnerable and shot multiple times, the victim was unarmed, which evidence was presented to the jury, the victim was shot once in the back which disabled him and which at that time the defendant could have discontinued the contact with the victim and thereafter the victim was shot three more times while totally incapacitated. So these facts were presented to the jury. The court believes that they supported the jury’s finding of first degree murder and personal use and the nature of the use of the firearm greatly exceeded that which was necessary to commit the robbery as planned.”
It is not so much that the evidence was presented to the jury, but how it was presented: through defendant’s admission that he fired three additional shots at the victim while the victim was down. This admission supports the underlying facts for the aggravating factors, as found by the trial court. Defendant admitted facts showing great violence, above and beyond that necessary for the commission of a robbery, and of the use of a firearm against a vulnerable victim. Thus, the upper term was imposed based on facts admitted by defendant, not facts found by the court.
On reconsideration of our initial opinion in light of Cunningham, we concluded that there is no Cunningham error with regard to the upper term imposed for the use of a firearm.
Defendant also raised a Blakely challenge to consecutive sentences imposed on two other robberies. His postremand supplemental brief focused on the issue of the upper term, and presented no substantive argument on consecutive sentencing.
We further concluded that any Cunningham error would be harmless under the applicable Chapman standard. (Chapman v. California (1967) 386 U.S. 18.)
It is clear beyond a reasonable doubt that, on the evidence presented, the jury would have found that defendant used great violence in excess of that necessary to commit the robbery, and fired three shots at the victim while he lay wounded on the ground. The aggravating factors in this case are not based on qualitative assessments of abstract concepts never put before the jury. Rather, the factors are based on precise, objective facts shown by the evidence presented at trial.
Finding no Cunningham error, we again affirmed the judgment. Our memorandum opinion (People v. Spears (June 27, 2007, A107984) [nonpub. opn.]), remains on file with this court, and we hereby incorporate by reference into this subsequent memorandum opinion.
The California Supreme Court granted review. On July 19, 2007, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On September 12, 2007, the California Supreme Court transferred this matter to us for reconsideration in light of Black II and Sandoval.
Nothing in Black II and Sandoval causes us to alter our conclusion that there is no Cunningham error in this case because the facts in support of the aggravating circumstances were either admitted by defendant or necessarily found true by the jury. Nor do we alter our conclusion that any error is harmless.
In his latest post-remand supplemental brief, defendant argues that Sandoval dictates a finding of prejudicial error. We disagree. Defendant claims that his admission of facts in support of the aggravating circumstances is insufficient, and that he had to admit the aggravating circumstances themselves. This claim is meritless. Sandoval, summarizing existing law, clearly states that a defendant may admit facts to justify an aggravated term without a violation of the Sixth Amendment right to jury trial. (Sandoval, supra, 41 Cal.4th at pp. 836-838.)
Defendant also argues that Sandoval undercuts our conclusion that there is no Cunningham error in this case because the facts in support of the aggravating circumstances were either admitted by defendant or necessarily found true by the jury. Defendant is mistaken. Sandoval involved aggravating factors, including some “relat[ed] to the defendant’s state of mind,” which were hotly contested at trial or not supported beyond a reasonable doubt by the evidence in the record. (Sandoval, supra, 41 Cal.4th at pp. 841-842.) Here, however, the aggravating factors were part and parcel of the jury’s determination of guilt. We conclude “beyond a reasonable doubt[] that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, . . .” (Id. at p. 839.)
We reiterate our first memorandum opinion, filed June 27, 2007, in its entirety. (See City of Long Beach v. Bozek (1983) 33 Cal.3d 727, 728.)
We again affirm the judgment and sentence.
We concur: Stein, J., Swager, J.