THE PEOPLE v. LEON JORDAN

Filed 7/11/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Appellant Leon Jordan agreed to waive his right to a jury trial in exchange for a maximum sentence of 15 years. After a court trial, defendant was found guilty of three felonies, including second degree robbery (Pen. Code, § 211; count 1),[1] vehicular evasion of an officer (Veh. Code, § 2800.2; count 2), and transportation of marijuana (Health & Saf. Code, § 11360, subd. (a); count 3). The trial court also found true the allegations of five prior strike convictions (§ 667, subd. (b)-(i)) and two prior serious felony convictions (§ 667, subd. (a)(1)), for robbery and criminal threats.

Defendant was sentenced to a total term of 15 years in state prison. His sentence was structured as follows: 10 years on count 1 (§ 211; double the upper term of five years); two years on count 2 (Veh. Code, § 2800.2; the middle term, to be served concurrently); three years on count 3 (Health & Saf. Code, § 11360, subd. (a); the middle term, to be served concurrently); a five-year enhancement for the first prior serious felony conviction (to be served consecutively); and a five-year enhancement on the second prior serious felony conviction (stayed).

On appeal, defendant contends that the trial court committed two sentencing errors. First, defendant asserts that the trial court improperly stayed the five-year enhancement on the second serious felony conviction because a stay is not authorized under section 667, subdivision (a)(1). Second, defendant argues that the upper term sentence on count one violates his Sixth Amendment right to a jury trial for the reasons set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

For reasons that we will explain, we find merit in defendant's first contention of sentencing error, but reject defendant's Blakely claim. Therefore, we will remand the matter for the sole purpose of allowing the trial court to restructure the sentence as authorized by law, subject to the 15-year maximum.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

According to the trial testimony, victim Matthew Kunz agreed to sell marijuana to Alvin Taylor[2] on three different occasions during the month of April 2005. Defendant was involved in only the third transaction.

The first sale occurred at the beginning of April at a Safeway store in Santa Cruz. Kunz and Taylor met in the Safeway parking lot at around 11:30 p.m. and went into the store's bathroom to complete the transaction. Kunz gave Taylor one ounce of marijuana and received $260.

About one week later, Taylor contacted Kunz and asked to buy two ounces of marijuana. Kunz obtained one ounce of marijuana and called Taylor. They arranged to meet at the Safeway store between 11:30 and midnight, as they had done before. Kunz subsequently changed the meeting place to a bowling alley, but Taylor did not show up. A few days later, they again decided to meet at the Safeway parking lot. After they arrived there, Kunz told Taylor to get in Kunz's car. As Kunz drove around the block, he gave Taylor the marijuana in exchange for $300.

One week after his second marijuana purchase, Taylor repeatedly asked Kunz to sell him two pounds of marijuana. Kunz obtained the marijuana and they decided to meet at the Safeway store's bathroom on the night of April 26, 2005, to complete the sale. Taylor was to pay Kunz $8,400 for the marijuana and the backpack containing the marijuana, and in turn Kunz was to pay his supplier $7,000 for a profit of $1,400. As he walked to the Safeway store, Kunz telephoned Taylor and asked him whether he was with anyone. Taylor said no and asked Kunz the same question. Kunz also denied that anyone was accompanying him.

However, the transaction did not go forward as planned. Kunz first encountered Taylor in the dairy section of the Safeway store instead of the bathroom. Taylor did not respond to Kunz's complaint that they were supposed to meet in the bathroom, merely saying, â€