P. v. Lammers

Filed 4/3/07 P. v. Lammers CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury convicted defendant Robin Rinaldo Lammers of multiple counts of grand theft and related criminal violations of the Civil Code stemming from the marketing and sale of automobile-engine distributorships. The trial court sentenced defendant to five years in prison, which involved the trial courts reliance on aggravating facts so as to impose an upper term and consecutive sentences. On appeal, defendant contended that the trial courts imposition of the upper term violated his state and federal constitutional rights to have his sentence based only on facts found by a jury. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely).) In an opinion filed on January 11, 2007, we affirmed the judgment based upon the then controlling authority. (People v. Black (2005) 35 Cal.4th 1238.) We thereafter granted defendants petition for rehearing to consider the effect of Cunningham v. California 549 U.S. __ [127 S.Ct. 856] [2007 U.S. LEXIS 1324] (Cunningham). We reverse the judgment and remand for resentencing.

background

In selecting count 1 as the principal term and imposing a three-year upper term therefor, the trial court articulated the following: And the reasons I am imposing the upper term is that I have considered the circumstances in mitigation as well as the circumstances in aggravation and Ive decided that the circumstances in aggravation outweigh the circumstances in mitigation, in particular the circumstance of the planning, sophistication and the professionalism with which the crime was carried out, and Im satisfied that that factor outweighs the other factors and justifies imposition of the upper sentence with respect to count one. (Italics added.)

In imposing three eight-month consecutive terms for counts 2, 3, and 4, the trial court articulated the following: I have considered the criteria affecting the imposition of concurrent or consecutive sentences as set out in Rule 4.425 and finding that the facts relating to the, with respect to facts relating to the crimes alleged in those counts, the objectives were predominantly independent of each other and that the crimes alleged in counts 1, 2, 3 and 4 were committed at different times and separate places. [] Im going to find with respect to each of those counts that they involved multiple victims. Ive considered the circumstances in mitigation and aggravation as set out in Rule 4.423 and 4.421, and Im going to find that the circumstances in aggravation outweigh the circumstances in mitigation, particularly the circumstance that the crime involved an intent or actual taking of, damages of great monetary value. [] Ill also find that the circumstances that defendant has served a prior prison term prior to the commitment of the crimes in this case. Those circumstances in the courts view outweigh the circumstances in mitigation and justify the imposition of consecutive sentences.

discussion

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority of the United States Supreme Court held, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) Blakely held that the 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. (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the court held that, under Californias determinant sentencing scheme, the upper term can only be imposed if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, 549 U.S. __ [2007 U.S. LEXIS 1324].)

Blakely describes three types of facts that a trial judge can properly use to impose an aggravated sentence: (a) the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301); (b) facts reflected in the jury verdict (id. at p. 303, italics omitted); and (c) facts admitted by the defendant (ibid., italics omitted).

In light of Cunningham, defendant asserts that the trial courts imposition of the upper term for count 1 violated Cunningham and Blakely, because it was based upon a single aggravating factor neither admitted by him nor found true by a jury (planning, sophistication, and professionalism in carrying out crime). We disagree with defendants characterization of the record.

The record reflects that (1) the trial court found five aggravating factors (planning-sophistication-professionalism, independent objectives, multiple victims, great monetary value, prior prison term), and (2) the factors were relevant to making two sentencing choices (upper term and consecutive sentences). One of the factors was that defendant had served a prior prison term.[1] (Cal. Rules of Court, rule 4.421(b)(3).) As Apprendi states, and Blakely agrees, prior recidivist conduct may be used by a sentencing judge, even absent a jury finding, to increase a defendants term. (Apprendi, supra, 530 U.S. at pp. 488, 490; Blakely, supra, 542 U.S. at p. 301.)

It is true that the trial court articulated the prison-term factor as a justification for consecutive sentences rather than the upper term. But the trial court considered all of the aggravating factors for purposes of the upper term (I have considered the circumstances in mitigation as well as the circumstances in aggravation). It merely singled out the planning-sophistication-professionalism factor for emphasis (in particular).

But, even if we were to conclude that there was no Cunningham error because the prison-term factor is an exception to Cunningham, the posture of this case after Cunningham is that the trial court relied on several factors to impose the upper term--only one of which is a valid factor[2]--and there were unspecified mitigating factors (I have considered the circumstances in mitigation).

Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation. (Cal. Rules of Court, rule 4.420(b).)

Here, the record does not show how much weight the trial court gave to the prison-term factor (or the multiple-victims factor, if applicable) or the mitigating factors. In addition, what remains is one circumstance in aggravation (or two) and at least two circumstances in mitigation. Thus, it is unclear whether appropriate aggravating factors predominate such that we can say there is no reasonable probability that defendant could receive a more favorable sentence if we remanded. (People v. Watson (1956) 46 Cal.2d 818, 836.)

disposition

The judgment is reversed. The matter is remanded for resentencing as to the upper term.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Under well-established California law, only a single aggravating factor is required to impose an upper term and the same is true of the choice to impose a consecutive sentence. (People v. Osband (1996) 13 Cal.4th 622, 728.)

[2] The People argue that the multiple-victims factor applies and is an exception to Cunningham. Even if we assume that the People are correct, the assumption does not affect our analysis.