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People v. Torres

California Court of Appeals, Fourth District, Second Division
Mar 12, 2008
No. E043514 (Cal. Ct. App. Mar. 12, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO TORRES, Defendant and Appellant. E043514 California Court of Appeal, Fourth District, Second Division March 12, 2008

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FSB052743, David Cohn, Judge.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

King J.

I. PROCEDURAL HISTORY

A jury convicted defendant of robbery (count 1—Pen. Code, § 211), assault with a firearm (count 2—§ 245, subd. (a)(2)), and possession of a firearm by a felon (count 3—§ 12021, subd. (a)(1)). Additionally, the jury found true corresponding allegations that defendant personally used a firearm in his commission of counts 1 and 2. (§§ 12022.53, subd. (b), 12022.5, subds. (a) & (d).) Defendant admitted allegations he suffered three prior prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to an aggregate prison term of 16 years consisting of the midterm of three years on count 1, 10 years consecutive on the personal use enhancement for count 1, and an additional consecutive year for each of defendant’s three prior prison terms. The court stayed imposition of sentence on counts 2 and 3, as well as on the personal use enhancement attached to count 2, pursuant to the dictates of section 654’s bar against multiple punishment. On appeal, defendant contends the trial court violated his Sixth Amendment (U.S. Const., 6th Amend.) right, via the Fourteenth Amendment (U.S. Const., 14th Amend.), to a jury finding on those factors it used in justifying imposition of the upper term on the personal use enhancement. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).) However, as the People correctly assert, there is no triad of possible terms for a violation of section 12022.53, subdivision (b); thus, the court did not err in imposing the only sentence it was permitted to impose and the judgment is, therefore, affirmed.

All further statutory references are to the Penal Code unless otherwise indicated.

II. DISCUSSION

In Cunningham, the United States Supreme Court held that by placing sentence-elevating factfinding within the trial judge’s province, California’s determinate sentencing law (DSL) violated a criminal defendant’s right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, supra, 127 S.Ct. at p. 860.) The Cunningham court explained that because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the California DSL violates the bright-line rule in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) that any fact, other than the fact of a prior conviction, 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, supra, at p. 868). Quoting Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) for the proposition that “‘[t]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,’” the Cunningham court concluded that “[i]n accord with Blakely, therefore, the middle term prescribed in California statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, at p. 868.)

Here, the court imposed the only sentence it was statutorily permitted to impose without any need to resort to judicial factfinding. Section 12022.53, subdivision (b), in pertinent part, provides that “any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.” This is precisely what the trial court did. Cunningham does not apply to the sentence both because the 10-year sentence was the maximum the trial court could sentence without additional factfinding and because the court did not engage in any additional factfinding. There was simply no other sentence the court could legally impose. Defendant appears to rely solely on the erroneous referral in the minute order to the imposition of the 10-year sentence on the enhancement as the “UPPER term.” To resolve the confusion, we shall order the trial court to correct the minute order to eliminate the reference to the upper term. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)

III. DISPOSITION

The trial court is directed to amend the minute order dated June 8, 2007, to extricate the reference to the “UPPER” term in regard to its imposition of sentence as to the section 12022.53, section (b) enhancement. In all other respects, the judgment is affirmed.

We concur: Ramirez P.J. Miller J.


Summaries of

People v. Torres

California Court of Appeals, Fourth District, Second Division
Mar 12, 2008
No. E043514 (Cal. Ct. App. Mar. 12, 2008)
Case details for

People v. Torres

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO TORRES, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 12, 2008

Citations

No. E043514 (Cal. Ct. App. Mar. 12, 2008)