P. v. Ristau

Filed 7/6/07 P. v. Ristau CA6

Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This matter comes before us for a third time for reconsideration, in light of Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 868] (Cunningham), of the propriety of the trial courts imposition of the upper term. We will direct a modification of the judgment and will affirm the judgment as modified.

Background

In our first decision we affirmed the judgment in all respects but one: we held that the trial courts imposition of the upper term on count 1 could not be sustained in light of Blakely v. Washington (2004) 542 U.S. 296 (Blakely), because that sentence was not predicated, and could not be predicated, on facts admitted by defendant or found by the jury. (People v. Ristau (Nov. 10, 2004, H025445) (Ristau I).) The California Supreme Court granted review and deferred further action pending its decision in another matter concerning the correct interpretation of the statute under which defendant was prosecuted. (People v. Ristau, review granted Feb. 23, 2005, S130191.) The court subsequently retransferred the matter to this court for reconsideration in light of People v. Salas (2006) 37 Cal.4th 967. (Order filed Apr. 12, 2006.) We again affirmed the judgment with respect to guilt. (People v. Ristau (Jun. 28, 2006, H025445) (Ristau II).) This time, however, we affirmed the judgment in its entirety, reinstating the upper term on count 1. (Ibid.) We did so under compulsion of the intervening decision in People v. Black (2005) 35 Cal.4th 1238, 1244, which held that Blakely did not restrict the power of California courts to impose the upper term under our determinate sentencing law (DSL).

On December 14, 2006, defendant petitioned the United States Supreme Court for a writ of certiorari. (Ristau v. California, No. 06-2485, docketing letter dated Dec. 21, 2006.) On February 20, 2007, that court granted the petition, vacated our judgment in Ristau II, and remanded the matter to us for further consideration in light of Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].

Discussion

It is evident from the foregoing that no issues other than sentencing remain for determination by this court. We therefore reaffirm our analysis of all other issues, as set forth in Ristau II, without recapitulating that analysis here.

In Cunningham, supra, 549 U.S. at pp. ___-___ [127 S.Ct. at pp. 868-871], the court repudiated the analysis by which the Black decision had sustained, as against federal constitutional challenge, the imposition of an upper term without supporting jury findings as permitted by the DSL. Contrary to the Black courts holding, wrote Justice Ginsburg, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Id. at p. 871.) About a month later, the court granted certiorari in Black itself, vacating and remanding it for reconsideration in light of Cunningham. (Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210].)

This seems to restore the present matter to the posture it occupied when we first decided it. At that time we concluded that imposition of the upper term on count 1 (Corp. Code, 25541) could not be reconciled with federal authorities because it appeared to rest on a number of factual findings that were neither found by a jury nor admitted by defendantmost prominently, that defendant lacked remorse,. (Ristau I [at pp. 39-40]; see Blakely, supra, 542 U.S. at pp. ___ [124 S.Ct. at pp. 2536, 2537].) We now reinstate that holding: the upper term on count 1 cannot be sustained consistent with Blakely, as reaffirmed in Cunningham.

The only real question is whether to remand for a new sentencing hearing or to direct a modification of the sentence without further hearing in the trial court. Our examination of the record suggests no basis on which the trial court could permissibly reinstate the upper term. Nor does the record suggest any way in which the court might adjust the sentence in other respects to reflect a reduction of the sentence on count 1. For example, we see no indication that the court imposed concurrent terms where it had the discretion to impose consecutive terms. Except for counts on which sentence was stayed pursuant to Penal Code section 654, the court imposed consecutive terms on all counts. Accordingly a remand for further sentencing proceedings would appear futile, and the case appears appropriate for a directed modification of the judgment.

Disposition

The judgment is modified to reduce the sentence on count 1 from five years to three years. In all other respects the judgment is affirmed. The trial court is directed to notify appropriate correctional authorities of this modification by transmission of an amended abstract of judgment.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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