P. v. Tewolde

Filed 9/12/07 P. v. Tewolde CA1/1

Opinion on remand

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).

Pursuant to this mandate, we recalled the remittitur. We re-examined our initial opinion in this case (People v. Tewolde (Mar. 21, 2005, A106273) [nonpub. opn.]), which remains on file with this court, and which we hereby incorporate by reference into this order.

In our prior opinion, we held that the imposition of the upper term violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We noted that the sentencing court found three aggravating factors:

(1) The crime involved a high degree of cruelty, viciousness, and callousness;

(2) The victim was particularly vulnerable; and

(3) Defendant had suffered numerous prior juvenile adjudications.

We noted that factor (3) is based on recidivism, and thus was not invalid under Blakely. But factors (1) and (2) involved issues of fact which were not admitted by defendant or determined by a jury. Thus, we held that it was error under Blakely for the court to rely on factors (1) and (2) to impose the upper term.

We further held that, under the circumstances of this case, the error was not harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18.) We acknowledged that one valid aggravating factor is generally sufficient to expose a defendant to the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.) But even in the context of general, nonconstitutional sentencing error, a reviewing court will set aside a sentence if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492.)

We concluded that it was not clear beyond a reasonable doubt that the trial court would have imposed the upper term had it known factors (1) and (2) were invalidi.e., if the court was faced only with one valid aggravating factor, factor (3). Factors (1) and (2) were by far the more severe of the three. Factor (1) involved cruelty, viciousness, and callousness, based on the kicking of the victim when he was lying unconscious. Factor (2) involved the victims vulnerability. In contrast, factor (3) involved a relatively brief juvenile history of less than serious offenses. Given the factor in mitigation found by the trial court, as well as the numerous letters in defendants favor, we could not conclude beyond a reasonable doubt that the trial court would have imposed the upper term based solely on factor (3).

On June 26, 2007, we filed a memorandum opinion in which we stated that we had reconsidered our prior opinion in light of Cunningham, which simply applies Blakely to California sentencing law. We concluded that Cunningham only confirmed the validity of our initial holding. We reiterated our prior opinion in its entirety. (See City of Long Beach v. Bozek (1983) 33 Cal.3d 727, 728.)

On July 19, 2007, the California Supreme Court decided People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 D.A.R. 11041]; [2007 Cal. Lexis 7604] (Black II). In Black II, the court held: Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum.  (Black II, supra, 2007 D.A.R. at p. 11045 [fn. omitted].)

In other words, if there is a single aggravating circumstance which satisfies Blakely, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to [a] jury trial. (Black II, supra, 2007 D.A.R. at pp. 11044-11045.)

The Black II court further held, consistent with existing authorities, that a defendants criminal historysuch as the increasing seriousness of prior convictionsqualifies under the recidivism exception to Blakely. (Black II, supra, 2007 D.A.R. at pp. 11047-11049.)

On July 20, 2007, the Attorney General petitioned for rehearing under Black II, arguing that defendants single, recidivist-based aggravating factor justifies the upper term imposed by the trial court.

On July 24, 2007, we granted rehearing and asked defendant to file opposition. On August 1, 2007, defendant filed opposition, in which he primarily argues that juvenile adjudications cannot be used as an aggravating factor to justify an upper term because those adjudications are made without benefit of a trial by jury.

The issue of juvenile adjudications vs. adult convictions was raised in passing in the original opening brief and has not been a central issue in this case. Despite the recent decision of the Sixth District in People v. Nguyen (2007) 152 Cal.App.4th 1205 (Nguyen), we agree with the majority view that despite the lack of a jury trial, juvenile adjudications can qualify as prior convictions and thus be used as sentencing factors in adult criminal proceedings. (See cases collected in Nguyen, supra, at p. 1225.)

Accordingly, aggravating factor (3) is valid under Blakely and is sufficient under Black II to justify the upper term.

The judgment and sentence are affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Swager, J.

______________________

Margulies, J.

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