P. v. King

Filed 5/3/06 P. v. King CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Jack W. Morgan, Judge. Reversed and remanded for resentencing, otherwise affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Stacy S. Schwartz, Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, appellant was convicted of three counts of second degree robbery. As to each count the jury found true the allegation that appellant personally used a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (b).[1] He was sentenced to 23 years and 8 months in state prison.

Appellant's contentions on appeal do not contest his guilt but challenge the validity of the sentence, specifically the imposition of an upper term on count one, in view of Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and other arguments. He maintains that the middle term of three years rather than the upper term of five years should have been imposed. (See § 213, subdivision (a)(2).) Concluding that the decision in People v. Black (2005) 35 Cal.4th 1238 (Black) governs but that the reason given for the upper term is insufficient, we shall reverse and remand for a new sentencing hearing.

PROCEDURAL HISTORY AND STATEMENT OF FACTS[2]

Testimony at trial

July 22, 2004, count 3

On July 22, 2004, appellant entered a paint business in Paramount. Pointing his gun at an employee, appellant demanded the employee's wallet. When he discovered it contained only a few dollars, appellant threw the wallet to the ground and fled with a person waiting for him outside with bicycles. The employee identified appellant in a photographic lineup and at trial.

July 27, 2004, counts 1 and 2

On the afternoon of July 27, 2004, in an episode captured on a digital surveillance system, appellant and another perpetrator robbed a salesperson and the general manager at a cellphone retailer in Paramount. Appellant pointed a gun at the manager and took his wallet. The other perpetrator held the salesperson at the front of the business and took $50 and a cellphone from her purse. The victims were both taken to the back storage room, where the assailants took several boxed cellphones from the storage room and fled. The victims identified appellant in a photographic lineup a few days later and at trial. The salesperson recognized appellant from his visit to the store four days earlier.

Appellant did not testify, and the defense called no witnesses.

Sentencing

The prosecution's sentencing memorandum cited 23 years 8 months as the maximum sentence if Blakely does not require a jury to find the facts supporting an upper term and 21 years 8 months if Blakely forbids imposition of the upper term without a jury's factual findings. Appellant had rejected a sentence of eight years offered prior to trial.

The parties stipulated that the court could utilize the probation report for purposes of sentencing.[3] Concerned about the â€