P. v. Fetissova

Filed 6/18/07 P. v. Fetissova CA2/6

Opinion following remand form the U.S. supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In a prior opinion, we affirmed the convictions of Rimma Fetissova for conspiracy to solicit for a prostitute (Pen. Code,  266h, subd. (a)/182, subd. (a)(1)),[1]conspiracy to commit pandering ( 266i, subd. (a)(1)/182, subd. (a)(1)), soliciting for a prostitute ( 266h, subd. (a)), pandering ( 266i, subd. (a)(1)), and four counts of money laundering ( 186.10, subd. (a)). The jury found a true allegation that two money laundering counts involved in excess of $50,000. ( 186.10, subd. (c)(1)(A).) Fetissova was sentenced to nine years in state prison consisting of a six-year upper term on the

soliciting for a prostitute count, and consecutive terms of sixteen months on the pandering count and eight months and one year, respectively, on two of the money laundering counts. Other sentences were stayed. ( 654.) Fetissova contended that, because the sentences were based on aggravating factors determined by the court, the trial court's imposition of an upper term and consecutive sentences violated her constitutional right to a jury trial under the rules announced in Apprendi v. New Jersey (2000) 530 U.S. 466, and Blakely v. Washington (2004) 542 U.S. 296. We rejected Fetissova's contention following the holding of our Supreme Court in People v. Black (2005) 35 Cal.4th 1238. Thereafter, the United States Supreme Court granted Fetissova's petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] which overruled Black, in part.

In Cunningham, the United States Supreme Court invalidated the portion of California's Determinate Sentencing Law that permits a judge to impose an upper term sentence based on aggravating sentencing factors that are not determined by a jury.

Accordingly, we vacate the portion of the sentence imposing the upper term for the offense of soliciting for a prostitute, and remand for resentencing consistent with Cunningham. [2] The trial court is directed to prepare an amended abstract of judgment in accordance with this opinion and deliver it to the Department of Corrections. In all other

respects the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Robert J. Perry, Judge

Superior Court County of Los Angeles

______________________________

Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney General, for Plaintiff and Respondent.

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[1]All statutory references are to the Penal Code.

[2]We take judicial notice of appellant's petition for writ of certiorari, and note that the only issue addressed therein is "Whether California's Determinate Sentencing Law, by permitting sentencing judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Blakely v. Washington,542 U.S. 296 (2004)." Appellant did not challenge imposition of consecutive sentences for certain offenses in her writ of certiorari.