P. v. Woodson
Filed 9/4/07 P. v. Woodson CA3
Opinion following rehearing
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. ROBBIE HOWARD WOODSON, Defendant and Appellant. | C053022 (Super. Ct. No. 05F03735) OPINION ON REHEARING |
Defendant Robbie Howard Woodson appeals his sentence following conviction by jury trial of the following offenses: count 1--murder (Pen. Code, 187, subd. (a); undesignated section references are to the Penal Code); count 2--assault on a child with force likely to produce great bodily injury resulting in death ( 273ab); count 4--felony child abuse ( 273a, subd. (a)) and count 5--infliction of corporal injury on the mother of a child ( 273.5, subd. (a)).
Defendants convictions resulted from the death of defendants 11-month-old son who, upon examination at the UC Davis Medical Center on April 28, 2005, had bruises on his head, torso, buttocks and leg. Defendant had earlier struck the child, causing a black eye, in February, 2005.
In this appeal, defendant challenges only the imposition of the upper term of six years on count 4, violation of section 273a, subdivision (a), on the ground the upper term was imposed based upon an aggravating factor not found by the jury as required by Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. __; 166 L.Ed.2d 856] and Blakely v. Washington (2004) 542 U.S. 296.
At sentencing, the trial court justified imposition of the upper term on count 4 as follows: The upper term is recommend [sic] in that you have engaged in violent conduct and that conduct poses a--constitutes a serious danger to society.
At sentencing, defendants counsel objected to imposition of the upper term on the ground that aggravating factors had not been tried to the jury as required by Blakely v. Washington, supra, 542 U.S. 296.
DISCUSSION
Cunningham v. California, supra, 549 U.S. __ at page __ [166 L.Ed.2d 856 at page 864] holds that the federal Constitutions jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.
The aggravating factor used by the trial court to impose the upper term on count 4--the defendant has engaged in violent conduct that constitutes a serious danger to society--is a fact that must be tried to the jury.
The People argue that Cunningham, supra, 549 U.S. __ [166 L.Ed.2d 856], does not apply because the recidivism exception applies in this case. We disagree. The trial courts reference was to the facts and circumstances of the present offense. The trial court was not referring to any prior conviction of the defendant. Consequently, the recidivism exception in Cunningham does not apply.
The People argue that the probation report listed aggravating factors not relied on by the trial court. In our view, this is of no moment. What is crucial is what the trial court stated on the record as the reason it imposed the upper term.
The People argue that any Cunningham error was harmless in this case. Cunningham error may be held harmless if we can conclude beyond a reasonable doubt that the jury would have made the same finding. (See Washington v. Recuenco (2006) 548 U.S. __ [165 L.Ed.2d 466, 474].) We cannot make the finding requested by the People. Although the death of an 11-month-old child is always tragic, the crime charged in count 4 occurred in February 2005, when defendant gave the child a black eye. It therefore preceded by several months the violent conduct that led to the childs death. Considering all circumstances, we cannot say beyond a reasonable doubt that the jury would have found the aggravating factor.
We conclude the case must be remanded to the trial court for resentencing in accordance with the views set forth by our Supreme Court in People v. Sandoval (July 19, 2007, S148917) __ Cal.4th __ [2007 Cal.Lexis 8244].
DISPOSITION
The upper term sentence on count 4 is vacated and the matter is remanded to the trial court for resentencing according to the procedures set forth in People v. Sandoval (July 19, 2007, S148917) __ Cal.4th __ [2007 Cal.Lexis 8244].
SIMS , Acting P.J.
We concur:
DAVIS , J.
RAYE , J.
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