P. v. Hughes

Filed 10/19/07 P. v. Hughes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 its 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 the judgment and sentence.

BACKGROUND

In December 2005, we affirmed defendants conviction and sentence for attempted murder, kidnapping, battery with serious bodily injury, terrorist threats, dissuasion and attempted dissuasion of a witness or victim, and false imprisonment. In reliance on People v. Black (2005) 35 Cal.4th 1238 (Black I), we rejected defendants argument that imposition of the upper term and consecutive sentence 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 filed a petition for review in the California Supreme Court raising a constitutional challenge to the imposition of the upper term and consecutive sentences. Our Supreme 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] the effect of Blakely and United States v. Booker (2005) 543 U.S. 220 on sentences imposed under California law.

Defendant then sought relief in the United States Supreme Court. The United States Supreme Court granted certiorari and remanded the case to this court for reconsideration in light of 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 has now been transferred back to this court for reconsideration in light of BlackII and Sandoval.^[1] Both defendant and the People have submitted supplemental briefs, which we have considered.

The Trial Courts Sentencing Decision

The trial court imposed the aggravated term for attempted murder and ordered that all terms be served consecutively, for a total sentence of 16 years. It explained its sentencing decision as follows: As to Count One, the Court imposes the aggravated term. The factors in aggravation being the fact that you displayed viciousness, cruelty or callousness; your violent conduct indicates that youre a serious danger to society. You have numerous prior convictions. You were on a grant of conditional sentence when the crimes were committed. Your performance on probation generally has been unsatisfactory. Youin regards to serious felony counts, in countsoffenses, in Counts One, Two and Four, you bound, confined and gagged the victim within the meaning of Penal Code Section 1170.84. [] Therefore, the Court selects the aggravated term and would impose also the aggravated term of all the other counts on which you were found guilty. [] . . . [] The Court also finds that [there] was a different period of criminality as to each of the crimes for which you were convicted. You had more than adequate time between each crime to reflect upon your conduct, to make a decision to proceed to the next step, if you will, and you chose every time then to go on to the next crime. So the Court imposes each and every one of these crimes consecutively for those matters.

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 the upper term in this case violated his rights under the Sixth and Fourteenth Amendments of the federal Constitution. As he acknowledges, however, his contention fails under Black II, and this court is bound by the holding in that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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.  (Black II, supra, 41 Cal.4th at p. 818.) On that basis, the court reasoned defendants criminal history alone rendered him eligible for the upper term sentence. (Ibid.)

So too here. The court identified at least one recidivist factordefendants numerous prior convictionsthat warranted imposition of the aggravated term. Accordingly, reconsideration in light of Black II confirms that imposition of the upper term was appropriate.

Defendant also claims he was wrongly denied a jury trial on factors used to impose consecutive terms. The California Supreme Court rejected 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, supra, 57 Cal.2d at p. 455.)

Defendant attempts to raise claims that the trial court failed to make findings required by state law, that the evidence was insufficient to support the attempted murder conviction, and that the jury instructions were inadequate. Those claims are beyond the scope of the transfer for reconsideration in light of Black II and Sandoval and, in any event, were raised, addressed and rejected in People v. Hughes (Dec. 14, 2005,A104380) [nonpub. opn.].

DISPOSITION

The judgment of the trial court 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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^[1] Justice Corrigan was recused and did not participate.

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