Opinion
C046559
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA LYNN WHEELER, Defendant and Appellant.
Not to be Published
Defendant Christina Lynn Wheeler was charged in an 11-count consolidated information that contained six counts of burglary (Pen. Code, § 459), two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), one count of attempted robbery (§§ 664, 211), one count of willful infliction of harm on a dependent elder (§ 368, subd. (b)(1)), and one count of trespassing (§ 602). The information also alleged enhancements based on the age of the victims, defendants use of a weapon and defendant being on bail at the time of the offenses.
Hereafter, undesignated section references are to the Penal Code.
Defendant pleaded no contest to three counts of first degree burglary (counts II, VII and XI). She also admitted the enhancements alleged in connection with counts II and XI that the victim was 65 years or older (§ 667.9, subd. (a)) and that defendant personally used a deadly weapon in the commission of count II (§ 12022, subd. (b)(1)). Finally, defendant admitted she was on bail at the time she committed the offenses. (§ 12022.1, subd. (a).) The remaining charges and enhancements were dismissed.
The trial court sentenced defendant as follows: the upper term of six years on count XI (the principal term); an additional one year for the elderly victim enhancement on count XI; one year four months (one-third the midterm) on count VII; one year four months (one-third the midterm) on count II; an additional one year for the elderly victim enhancement on count II; an additional one year for the personal use of a deadly weapon enhancement on count II; and two years for the on-bail enhancements, for an aggregate term of 13 years 8 months. As the reason for imposing the upper term, the trial court found the "manner in which that offense was carried out indicates planning, sophistication, professionalism."
Defendant appealed, asserting that imposition of the upper term violated the Sixth Amendment as interpreted in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403 (Blakely ). Bound by the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238, we rejected the contention. (People v. Wheeler (Sept. 29, 2005, C046559 [nonpub. opn.].)
The United States Supreme Court vacated this courts September 29, 2005, opinion following its decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham ), and we have received supplemental briefing.
Defendant reasserts her contention that her sentence violates the mandates of Blakely, supra, 542 U.S. 296. She also contends, and the people concede, that the trial court improperly computed her sentence. We shall remand the matter to the trial court for resentencing.
DISCUSSION
I
A recitation of the facts underlying defendants conviction is unnecessary to the issues resolved on appeal. Defendant claims that Blakely, supra, 542 U.S. 296, invalidates the statutory method used by California trial judges to impose upper term and consecutive sentences, thereby invalidating her sentence.
In a supplemental brief, the People argue that defendants challenge to her sentence is precluded because she failed to obtain a certificate of probable cause. Since then, however, the Supreme Court held in People v. French (2008) 43 Cal.4th 36, that a Cunningham claim is not a challenge to a negotiated sentence imposed as a part of a plea bargain and hence not a challenge to the plea. No certificate of probable cause under section 1237.5 is required. (French, supra, 43 Cal.4th at pp. 45-46.) We therefore proceed to the merits of defendants challenge.
In Cunningham, the United States Supreme Court applied Blakely to Californias Determinate Sentencing Law (DSL) and held that by "assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated `upper term sentence," Californias DSL "violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Cunningham, supra, 549 U.S. at p. ___ .)
Applying Cunningham, our Supreme Court held in People v. Black (2007) 41 Cal.4th 799 that "imposition of the upper term does not infringe upon the defendants 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 defendants record of prior convictions." (Black, supra, at p. 816.)
Here, the aggravating factor relied on by the trial court was not found to exist by the jury, admitted by defendant, or based on prior convictions. Therefore, defendants constitutional rights were violated by the trial courts imposition of an upper-term sentence.
Such an error is harmless if we can conclude "beyond a reasonable doubt[] that [a] 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[.]" (People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).) Although there is substantial evidence to support an aggravating factor for each of defendants crimes, we cannot say that a jury, applying a beyond-a-reasonable-doubt standard, would have unquestionably found true at least one of them.
Accordingly, defendants sentence must be vacated and the case remanded to the trial court for resentencing "in a manner consistent with the amendments to the [Determinate Sentencing Law] adopted by the Legislature." (Sandoval, supra, 41 Cal.4th at p. 846.)
II
However, defendant also contends, and the People concede, that the trial court improperly computed her sentence. Although we are remanding this matter for resentencing, we shall briefly discuss the proper sentencing computation for the trial courts guidance.
Because we remand for resentencing, we do not reach the issue of whether this court may properly revise defendants sentence to select a different count as the principal term.
Section 1170.1, subdivision (a), provides in relevant part: "[W]hen any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts . . ., and a consecutive term of imprisonment is imposed . . ., the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Italics added.)
Thus, on remand, the trial court shall select, as the principal term, the crime carrying the greatest punishment, including its corresponding enhancements. The remaining consecutive sentences must be treated as subordinate terms, with sentences of one-third the midterm, and of one-third for the corresponding enhancements. However, under section 1170.1, subdivision (a), the two-year sentence for the section 12022.1 on-bail violation is not subject to the one-third limit and must be added as a separate "additional term" component.
DISPOSITION
The sentence is vacated. The case is remanded to the trial court with directions to resentence defendant in accordance with this opinion and in a manner consistent with the amendments to the Determinate Sentencing Law adopted by the Legislature. In all other respects, the judgment is affirmed.
We concur:
SCOTLAND, P. J.
CANTIL-SAKAUYE, J.