P. v. Manuel

Filed 7/13/07 P. v. Manuel CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Paul A. Vortmann, Judge.

Sandra Uribe, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Travis Manuel (defendant), appealed from a conviction of mayhem. Defendant contended that the court abused its discretion in sentencing him to the upper term of imprisonment.^[1] In an opinion filed June 23, 2004, we affirmed the judgment, holding that battery with serious bodily injury is a lesser-included offense of mayhem and aggravated mayhem, but the evidence still did not warrant the instruction. We also held that the court did not err in sentencing.

On June 24, 2004, the United States Supreme Court issued its decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Defendant petitioned for rehearing, arguing that the trial court violated the Sixth Amendment as interpreted in Blakely by imposing the upper term of imprisonment based on facts not found by the jury. We agreed with defendant, vacated the sentence, and remanded for resentencing on April 15, 2005.

On June 20, 2005, the California Supreme Court filed its opinion in People v. Black (2005) 35 Cal.4th 1238. After soliciting briefing from the parties on the effect of Black on our opinion, the trial court reinstated its original judgment without reconsidering those factors recognized in Blakely as not requiring a factual finding by a jury.

Defendant filed an appeal contending that the trial court failed to follow our instructions on remand and erred in not conducting proper hearings pursuant to Blakely. Respondent replied that the doctrine of law of the case was superseded by the California Supreme Courts decision in Black. On June 20, 2006, we issued an opinion concluding that Black was dispositive of the sentencing issue. The California Supreme Court denied defendants petition for review. On February 20, 2006, the United States Supreme Court granted defendants petition for a writ of certiorari.

The United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) finding that its earlier opinions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely apply to Californias determinate sentencing scheme. On February 20, 2007, the United States Supreme Court vacated our judgment and remanded the case to our court for further consideration in light of Cunningham. Defendant now contends that the factors applied by the trial court to his sentence violate his right to a jury trial under Blakely and Cunningham.^[2]

SENTENCING HEARING

Defense counsel filed a written brief in the trial court exploring the impact of the Black decision on the instant action. Defendants brief argued that the trial court should impose the midterm sentence, or alternatively, determine sentencing following the Blakely requirements. The prosecutor argued the California Supreme Courts decision in Black determined that Blakely did not apply to Californias sentencing scheme and argued that the trial court should re-impose its original sentence.

At sentencing, the trial court noted that our opinion recognized that the application of Blakely to California law was then pending before the California Supreme Court. The court found it had to follow the Black decision. The court affirmed imposition of the aggravated term and confirmed the original sentence. In doing so, the court made no additional findings of fact and did not reevaluate the aggravating and mitigating sentencing factors.^[3]

DISCUSSION

In 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. (Apprendi, supra, 530 U.S. 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. [Citations.] (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the court held that, under Californias determinate 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. ___ [127 S.Ct. 856].)

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). The fact of prior convictions clearly comes under the prior-conviction exception to Blakely.

It is settled that only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Here, it appears that the trial court could have relied on defendants recidivism from his juvenile felony adjudication to impose the aggravated term as permitted by Blakely and Cunningham. When defendant was initially sentenced, the trial court referred to the juvenile adjudication as one factor (there was another) in denying probation. In resentencing defendant, the trial court did not reweigh any sentencing factors, nor did it refer to the juvenile adjudication. We cannot discern, therefore, how the court would exercise its sentencing discretion.

In our first opinion, we noted that the court had options which included the following: (1) the sentencing judge may consider whether to reimpose the upper term based on facts already in the record that are permissible under Blakely, such as defendants juvenile record; [and] (2) the sentencing judge may decide to impose the middle term .

DISPOSITION

The trial courts sentence is vacated and the matter remanded for resentencing in accordance with Blakely and Cunningham.

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^*Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

^[1]The court imposed the upper term of eight years, plus one year for a weapon enhancement pursuant to Penal Code section 12022, subdivision (b).

^[2]Respondent has filed a request that we take judicial notice of the record and our first opinion in defendants original appeal, case No. F042927, which we grant.

^[3]Judge Vortmann resentenced defendant. Judge Silveira presided over the original sentencing hearing. In denying probation, the court found defendants conduct toward the victim to be shocking. The court further noted that, although defendant had successfully completed probation as a juvenile offender for a felony adjudication of cruelty to animals, he thereafter purchased swords. One of those swords was used by defendant against the victim in this case. The court observed that it was not suggesting defendant violated probation by possessing knives or swords but that defendant acquired swords after the juvenile court attempted remediation of defendant.

In imposing the upper term for mayhem, Judge Silveira noted he was relying on two aggravating factors: (1) the nature and seriousness of the crime and degree of injury inflicted on the victim, and (2) defendant had time for reflection after brandishing a sword and the victim grabbed the blade prior to defendant injuring the victim. The court further noted there was time for defendant to reflect while committing the offense. The court did not expressly find any mitigating factors.

The probation officers report noted several other aggravating factors: The crime was extremely serious compared to other instances of the same offense; the victim was extremely vulnerable because she was unarmed during the attack; the defendant was an active participant in the crime; and the manner in which the crime was carried out demonstrated criminal sophistication.

The probation officer noted the defendant had a prior criminal record as a juvenile indicating a pattern of increasing seriousness; the defendant had no mental or physical disabilities but does have a history of alcohol and substance abuse; the effect of imprisonment on defendant would be moderate; the adverse collateral consequences on defendants life resulting from a felony conviction would be substantial; and, there was a likelihood that defendant would be a danger to others if he was not incarcerated.

The probation officer noted as mitigating factors that defendant had no known record of criminal convictions, and his prior performance on juvenile probation was satisfactory. Defendant further argued that he had only one prior juvenile adjudication for cruelty to animals; he told the probation officer he regretted the attack; the victim was a willing participant in the attack because she grabbed the sword and pushed defendant; and the crime occurred because of an unusual circumstance unlikely to recur.