Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of San Luis Obispo, John A. Trice, Judge, Ct. No. F353061
Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen, Deputy Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
John Joseph Swesey appeals a judgment following conviction of two counts of assault with a deadly weapon, residential burglary, three counts of making criminal threats, possession of a firearm by a felon, and possession of a dangerous weapon, with findings of infliction of great bodily injury and personal firearm use, among others. (Pen. Code, §§ 245, subd. (a)(1), 459, 422, 12021, subd. (a)(1), 12020, subd. (a), 12022.7, & 12022.5, subd. (a).) We reverse and remand for resentencing regarding the personal weapon use enhancements for counts 3 and 4, pursuant to People v. Black (2007) 41 Cal.4th 799, (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Peter and Maria Delvaglio owned an apartment building in San Luis Obispo. Swesey had been a tenant of the apartment building for two years. In February 2004, the Delvaglios commenced legal proceedings to evict Swesey after other tenants had complained of his behavior. The court ordered Swesey to leave by February 9, 2004.
On February 7, 2004, Swesey approached Mr. Delvaglio and threatened to kill him and "shoot [him] in the head."
On February 9, 2004, the Delvaglios awoke to find their front door unlocked and a window broken. Swesey entered their home holding a gun and pointing it at Mr. Delvaglio. Swesey stated that he was there "to kill" him. Mr. Delvaglio ran to his bedroom, locked the door, and telephoned the police emergency dispatcher.
Swesey went to the kitchen and confronted Mrs. Delvaglio. He stated that he would "kill both of [them] together." He fired a gunshot near her head and ordered her upstairs. Police officers then entered the residence and ordered Swesey to surrender the firearm. Swesey pushed Mrs. Delvaglio in front of him and held the gun to the side of her body. Mrs. Delvaglio struggled with Swesey and received a gunshot wound to her arm. Police officers arrested Swesey. At the time of his arrest, he possessed screwdrivers, vice grips, tape, and knives.
Swesey testified at trial and admitted breaking into the Devaglios' home. He denied that he intended to kill them. Swesey stated that he intended only to speak with the Devaglios concerning his eviction.
The jury convicted Swesey of two counts of assault with a deadly weapon, residential burglary, three counts of making criminal threats, possession of a firearm by a felon, and possession of a dangerous weapon. (§§ 245, subd. (a)(1), 459, 422, 12021, subd. (a)(1), & 12020, subd. (a).) It found that Swesey inflicted great bodily injury and that he personally used a firearm, among other findings. (§§ 12022.7 & 12022.5, subd. (a).)
The trial court sentenced Swesey to a prison term of twenty-four years and four months. It imposed and stayed sentence pursuant to section 654 for count 5 (making criminal threats), the sentence enhancements for count 5, count 7 (possession of a dangerous weapon), count 1 (assault with a deadly weapon), the sentence enhancements for count 1, and count 2 (assault with a deadly weapon).
The trial court also imposed an upper-term sentence for count 3 (residential burglary), the personal weapon use enhancement for count 3, and the personal weapon use enhancement for count 4 (making criminal threats). It imposed restitution and restitution fines, and awarded Swesey 1068 days' presentence custody credit.
During the sentencing colloquy, the trial judge described Swesey as having "terroriz[ed] people in our community," and implied that he feigned mental illness to avoid standing trial. The trial court selected the upper-term of six years for count 3, based upon Swesey's numerous and increasingly serious criminal convictions, and his service of a prior prison term. It imposed the upper-term of ten years for the personal weapon use enhancement for count 3 based upon the victims' vulnerability in their home and the planned nature of the crime. The trial court then imposed one-third of the upper-term of ten years for the personal weapon use enhancement for count 4 (making criminal threats). The trial court stated that the crime involved a great threat of bodily harm, the victims were particularly vulnerable, and the crime involved sophistication and planning. It found no factors in sentence mitigation.
Swesey appeals and contends that imposition of the upper-term sentences violates Cunningham v. California (2007) 549 U.S.-, -. During the briefing schedule, our Supreme Court decided People v. Black, supra, 41 Cal.4th 799, and People v. Sandoval, supra, 41 Cal.4th 825, deciding the issue.
The Attorney General responds in part that Swesey forfeited his claim because he did not object in the trial court. Our Supreme Court has decided this issue adversely to the Attorney General. (People v. Sandoval, supra, 41 Cal.4th 825, 837, fn. 4.) Swesey did not forfeit his claim because an objection in the trial court would have been futile under then-existing law. (Ibid.)
DISCUSSION
I.
Swesey argues that the upper-term sentence for burglary (count 3, § 459), and the two personal firearm use enhancements (counts 3 & 4, § 12022.5) violates his constitutional rights to trial by jury and proof beyond a reasonable doubt. (Cunningham v. California, supra, 459 U.S. -, -.)
In Cunningham v. California, supra, 549 U.S. -, -, the United States Supreme Court held that California's determinate sentencing law violates a defendant's federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by permitting the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper-term sentence. (Black II, supra, 41 Cal.4th 799, 805.) The requirement of a jury finding, however, does not extend to a finding that "'. . . a prior conviction occurred'" or "other related issues that may be determined by examining the records of the prior convictions." (Id., at p. 819.) "[I]mposition 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." (Id., at p. 816.)
The trial court properly imposed an upper-term sentence on count 3, residential burglary, because selection of the upper term rested upon Swesey's record of prior convictions. (Black II, supra, 41 Cal.4th 799, 816, 818 [recidivism is a traditional basis for increasing an offender's sentence].)
The trial court erred by imposing upper-term sentences for the personal firearm use enhancements for counts 3 and 4, however. In selecting the upper-term sentences for the firearm use enhancements, the trial court relied upon facts relating to the crimes that had not been determined by a jury beyond a reasonable doubt. (People v. Sandoval, supra, 41 Cal.4th 825, 836-838.) Thus, the trial court violated Swesey's Sixth Amendment rights by imposition of the upper-term sentence for the enhancements. (Id., at p. 838.) Upon remand, the trial court may exercise its discretion to impose any of the three terms available for Swesey's sentence enhancement pursuant to People v. Sandoval, supra, 41 Cal.4th 825, 832.)
II.
Our Supreme Court affirmed in Black II that imposition of consecutive sentencing does not implicate a defendant's right to a jury trial. (Black II, supra, 41 Cal.4th at p. 823.) Thus, the trial court did not err by imposing consecutive sentencing here.
We reverse and remand for resentencing regarding the personal firearm use enhancements to counts 3 and 4. The judgment is otherwise affirmed.
We concur: YEGAN, J., COFFEE, J.