P. v. Landecho

Filed 7/5/07 P. v. Landecho 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Ricardo Martinez Landecho pleaded guilty to the following: possession of methamphetamine for sale (Health & Saf. Code, 11378 [count 1]); use of a minor in the commission of count 1 (Health & Saf. Code, 11380 [count 3]); possession of cocaine for sale (Health & Saf. Code, 11351 [count 4]); and use of a minor in commission of count 4 (Health & Saf. Code, 11353 [count 6]). Defendant admitted allegations that the minor used as an agent in the commission of counts 3 and 6 was at least four years younger than defendant (Health & Saf. Code, 11380.1, 11353.1, subd. (a)(3).) Defendant also admitted that he had suffered a prior strike conviction (Pen. Code, 667, subds. (b)-(i)) and had served two prior prison terms (Pen. Code, 667.5, subd. (b)). The trial court sentenced him to 15 years and 8 months in state prison. Following his appeal, this court reversed the judgment and remanded for resentencing. The trial court then imposed a prison term of 15 years. Defendant appealed. Relying on People v. Black (2005) 35 Cal.4th 1238 (Black), this court held that the trial court did not err in imposing the upper term and affirmed the judgment. Following the United States Supreme Courts remand to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), we reverse and remand for resentencing.

I. Statement of Facts[1]

The police conducted a parole search of defendant and found a pager and some cash. They then asked defendants 13-year-old daughter to exit defendants car so that they could search it. After she stepped out of the car, an officer noticed small chunks of cocaine and a small plastic bindle fall from her shirt. She also had several large bulges in her shirt. When an officer told her not to cover for her father, she stated, Its all mine, and removed four plastic baggies containing methamphetamine and one containing cocaine. The police also found three plastic baggies of marijuana in her pocket. After searching the passenger compartment of defendants car, the police found a digital scale and marijuana.

II. Discussion

A. Imposition of Upper Term

Here the trial court imposed the upper term on count 3 based on the aggravating factors that the victim was particularly vulnerable (Calif. Rules of Court, rule 4.421, subd. (a)(5))[2] and that defendant had numerous prior convictions (rule 4.421, subd. (b)(3)). The trial court imposed the upper term on the enhancement based on the aggravating factors that defendant suborned perjury from a witness (rule 4.421, subd. (a)(6)) and that he was on parole at the time of the offense (rule 4.421, subd. (b)(4)).

Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), defendant contends that the trial courts imposition of the upper terms on count 3 and the sentencing enhancement violated his right to a jury trial. (U.S. Const. 6th & 14th Amends.)

In Apprendi, supra, 530 U.S. 466, 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.) In that case, the court focused on the narrow issue of whether the sentence for a single crime exceeded the statutory maximum. (Id. at p. 474.) The court further defined the statutory maximum in Blakely. It concluded 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. . . . In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Blakely, supra, 542 U.S. at p. 303.)

In Black, supra, 35 Cal.4th 1238, the California Supreme Court considered the effect of Blakely on Californias determinate sentencing law. It held that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial. (Id. at p. 1244.)

Recently, the United States Supreme Court overruled Black in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. The court held that Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments to the extent that it allows a judge to impose an upper term sentence based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Id. at p. 860.) Thus, the trial court may impose the upper term only if the factors relied upon meet the requirements of Apprendi and Blakely. (See id. at p. 871.)

Here, the trial court relied on aggravating factors that were not tried to and found by a jury beyond a reasonable doubt or admitted by defendant. Therefore, imposition of the upper terms violated defendants Sixth Amendment rights, and reversal is required unless the error was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546].) Though the trial court could properly rely on defendants prior convictions (see generally Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 868]), we cannot determine the weight that it gave to the other factors. Thus, we must reverse and remand for resentencing.

B. Right to Jury Trial on Prior Conviction Allegation

Defendant next contends that the trial court erred in imposing the upper term based on recidivism factors, that is, that he had prior convictions and was on parole. He argues that the prior conviction exception to the jury trial right no longer applies after Apprendi, supra, 530 U.S. 466 and Blakely, supra, 542 U.S. 296.

The prior conviction exception derives from the courts opinion in Almendarez-Torres v. United States (1998) 523 U.S. 224. In that case, the court concluded that the fact of the prior conviction was not an element of the present offense and held that a sentence enhancement based on recidivism need not be charged in the felony indictment, even if it increases the defendants maximum penalty. (Id. at pp. 226-227.)

Defendant argues that comments in the majority and concurring opinions in Apprendi indicate that the Supreme Court will overrule Almendarez-Torres. However, Almendarez-Torres is still controlling law, which this court is required to follow. (Auto Equity Sales, Inc. v. SuperiorCourt (1962) 57 Cal.2d 450, 457.)

III. Disposition

The judgment is reversed, and the matter is remanded for resentencing.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Rushing, P.J.

_____________________________

McAdams, J.

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[1] The statement of facts is based on our prior opinion in People v. Landecho (Sept. 19, 2003, H025016) [nonpub. opn.].)

[2] All further references to the rules are to the California Rules of Court.