P. v. Jones

Filed 10/19/07 P. v. Jones CA1/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Continuing a circuitous journey toward finality, this case comes before us after the California Supreme Court granted review and transferred the matter to this court for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. We affirm.

BACKGROUND

In August 2006, we affirmed defendants conviction and sentence for second degree murder, assault with a deadly weapon and making a criminal threat. In reliance on People v. Black (2005) 35 Cal.4th 1238 (Black I), we rejected defendants argument that imposition of a consecutive mid-range sentence and an aggravated enhancement on the basis of facts found by the court deprived him of his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

Defendant raised a constitutional challenge to the imposition of the upper term for the enhancement and the consecutive sentences in a petition in the California Supreme Court. The court denied review without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determined in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) the effect of Blakely and United States v. Booker (2005) 543 U.S. 220 on California law.

Defendant sought relief in the United States Supreme Court. The United States Supreme Court granted certiorari, vacated the judgment and remanded the case to this court for reconsideration in light of its decision in Cunningham. We again affirmed the judgment, but this time vacated the sentence and remanded the case to the trial court for resentencing. The People sought review in the California Supreme Court, which was granted, and the case was transferred back to this court for reconsideration in light of BlackII and Sandoval.

The Trial Courts Sentencing Decision

The trial court sentenced defendant to a term of 40 years to life in prison for the murder and 13 years consecutive for the assault including firearm enhancements. The total sentence included a consecutive mid-term sentence of three years for assault with a deadly weapon and the aggravated 10-year enhancement, also consecutive, for defendants personal use of a firearm.

The trial court gave as reasons for the aggravated sentence that defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which this Court intends to sentence concurrently, and is a serious danger to society. It ordered the terms to run consecutively based on its finding that the crimes and objectives were predominantly independent of one another.

ANALYSIS

In Cunningham, the high court concluded that Californias determinate sentencing law violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 876.) Relying on Cunningham, defendant contends the trial courts imposition of consecutive terms and the aggravated enhancement violated his rights under the Sixth and Fourteenth Amendments of the federal Constitution to have a jury determine beyond a reasonable doubt the existence of facts used to increase his sentence.

In Black II, our Supreme Court noted that in Blakely the United States Supreme Court explicitly recognized the legitimate role of judicial factfinding in indeterminate sentencing, in which the judge may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. (Blakely, supra, 542 U.S. at p. 309.) (Black II, supra, 41 Cal.4that pp. 812-813.) Accordingly, the court concluded that so long as defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813.) The court added that [t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense do not pertain to whether the defendant has a legal right to a lesser sentenceand that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.  (Ibid.) Noting the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term under Californias determinate sentencing law, the court therefore concluded that 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  for Sixth Amendment purposes. (Ibid.) Applying these conclusions to the facts before it, the Black II court noted the high court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[,] [citations] [and that] [r]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence.  (Id. at p. 818.) On that basis, the court reasoned defendants recidivism alone rendered him eligible for the upper term sentence. (Ibid.)

Here, the court imposed the aggravated enhancement for two reasons; one of those reasons was that defendant was convicted of other crimes for which consecutive sentences could have been, but were not, imposed. That sentencing decision does not implicate Cunningham for the simple reason that the jury found defendant guilty beyond a reasonable doubt of those other crimes. (See People v. Calhoun (2007) 40 Cal.4th 398, 406 [no Cunningham issue where jury necessarily found multiple victims].) Accordingly, our reconsideration of the legality of defendants sentence in light of Black II confirms that imposition of the aggravated enhancement was appropriate.

Defendant also claims he was wrongly denied a jury trial on factors used to impose consecutive terms. The California Supreme Court rejected just such a claim in Black I, supra, 35 Cal.4th at page 1262: [A] jury trial is not required on the aggravating factors that justify imposition of consecutive sentences. With respect to the same issue, Black II states: The high courts decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Black I,supra, 35 Cal.4th at p. 1264.) Accordingly, we again conclude that defendants constitutional right to jury trial was not violated by the trial courts imposition of consecutive sentences on all three counts. (Black II, supra, 41 Cal.4th at p. 823.) That conclusion is binding on this court and dispositive here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

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Siggins, J.

We concur:

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Pollak, Acting P.J.

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Horner, J.^*

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^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.