P. v. Azam

Filed 7/13/07 P. v. Azam CA1/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which has significant effects on Californias criminal sentencing scheme. As explained below, we vacate the sentence and remand to the trial court for resentencing.

PROCEDURAL BACKGROUND

In June 2006, we affirmed defendants convictions for kidnapping, inflicting corporal injury on a cohabitant, making criminal threats, attempting to induce false testimony, and disobeying a written court order. (People v. Azam (June 28, 2006, A108492) [nonpub. opn.].) Relying upon People v. Black (2005) 35 Cal.4th 1238, we rejected defendants argument that the courts imposition of the upper term for kidnapping violated his right to a jury trial on the aggravating factors under Blakely v. Washington (2004) 542 U.S. 296.

On February 26, 2007, the United States Supreme Court granted certiorari in this case, vacated the judgment, and remanded to this court for further consideration in light of its decision in Cunningham, supra, 127 S.Ct. 856. Pursuant to its mandate, we recalled the remittitur. We have reexamined our initial opinion in this case, and incorporate it by reference, and we received supplemental briefing from the parties.

The Trial Courts Sentencing Decision

The trial court imposed the upper term of eight years for defendants kidnapping conviction, with consecutive sentences of one-third the midterm for corporal injury on a cohabitant and making criminal threats. In imposing the upper term the court found several aggravating factors: the crime involved great violence that caused great bodily injury to the victim, the victim was particularly vulnerable, the beatings of the victim increased in seriousness, the defendant was on probation when the crime was committed, the defendant continued to violate restraining orders by writing letters to the victim while he was incarcerated, and the defendants prior performance on probation was unsatisfactory. The probation officer reported no circumstances in mitigation, but the court observed that [t]he fact that hes taken advantage of educational opportunities is a factor in mitigation.

ANALYSIS

In Cunningham, Californias determinate sentencing law was held to violate a defendants right to jury trial because California statutes permitted trial judges to determine facts used to impose an upper term sentence by a preponderance of the evidence. (Cunningham, supra, 127 S.Ct. at p. 868.)

The People argue that no Cunningham error occurred here, because the court relied in part on factors related to defendants prior convictions,^[1] and defendant admitted that he injured the victim during the kidnapping and wrote to her from jail after the court ordered no contact.^[2] Defendant had prior misdemeanor convictions for driving under the influence and misdemeanor battery (upon the same victim as in this case). He was on probation for the battery when he committed the current offenses. The People note that defendant admitted he dragged the victim by the hair, and never disputed that her back was injured. Defendant contends he had no reason to dispute the extent of the injury to the victims back, which was not an element of the kidnapping charge.

While the factors relating to defendants recidivism may have properly supported the imposition of an upper term sentence, we cannot conclude beyond a reasonable doubt that the court would have imposed the same sentence had it not considered factors concerning the defendants conduct that Cunningham requires to be found by a jury to be true beyond a reasonable doubt. Nor can we say the jury would have found the non-recidivist factors true beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Because the sentencing court seems to have placed significant reliance on aggravating factors determined by the court upon a preponderance of the evidence, we remand for resentencing in accordance with the requirements of Cunningham.

Although defendant contends the principles of Cunningham are also applicable to consecutive sentencing, the California Supreme Court foreclosed such a claim in People v. Black, supra, 35 Cal.4th at page 1262: [A] jury trial is not required on the aggravating factors that justify imposition of consecutive sentences. That holding was not disturbed by Cunningham, which did not discuss the distinct issue of consecutive sentences imposed for separate crimes. Black is binding on this court.^[3] (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is vacated only as to defendants sentence, and the case is remanded for resentencing. The judgment is otherwise affirmed. We express no opinion whether compliance with Cunningham will require a change in the actual sentence imposed in this case.

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Siggins, J.

We concur:

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Parrilli, Acting P.J.

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Pollak, J.

^[1] The probation report showed an additional out-of-county conviction for contempt of court. Defendant disputed that conviction at sentencing, and the prosecutor stated that probation was revoked based on the arrest and the charges were dismissed.

^[2] During discussion of defendants eligibility for probation at sentencing, the prosecutor acknowledged that great bodily injury was not alleged. Defendant testified he wrote to the victim after the court ordered no contact, but claimed he did so only in response to her letters to him.

^[3] However, the court failed to explain why it imposed consecutive sentences for the convictions for corporal injury on a cohabitant and making criminal threats. (See People v. Champion (1995) 9 Cal.4th 879, 934 [court must give reasons for its choice to impose consecutive sentences]; see also People v. Coleman (1989) 48 Cal.3d 112, 163 [court may not rely on same facts to impose both the upper term and a consecutive sentence].) The reasons for consecutive sentences can be clarified on resentencing.