P. v. Heims
Filed 2/8/07 P. v. Heims 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THE PEOPLE, Plaintiff and Respondent, v. PAUL JOSEPH HEIMS, Defendant and Appellant. | B188946 (Los Angeles County Super. Ct. Nos. BA275842, BA279191) |
APPEAL from a judgment of the Superior Court of Los Angeles County. George Gonzalez Lomeli, Judge. Affirmed in part, reversed in part, and remanded.
Athena Shudde, 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, Scott A. Taryle and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Paul Joseph Heims challenges the sentence imposed for his possession of cocaine base conviction on the ground the trial court violated his right to a jury trial by imposing the upper term. We remand for resentencing because the trial court imposed an upper term on the basis of facts it, not the jury, found.
BACKGROUND AND PROCEDURAL HISTORY
In Case No. BA275842, filed in December 2004, appellant was charged with possessing cocaine base. The complaint also alleged he had served a prior prison term. Appellant pled guilty and was placed on probation under Proposition 36.
In Case No. BA279191, filed in February 2005, appellant was charged with attempted possession of cocaine base. The complaint alleged a prior prison term and two prior similar convictions. Appellant pled guilty and was placed on probation under Proposition 36.
Appellant was arrested again on May 29, 2005. The People filed a new case against appellant and sought to revoke his probation in Case Nos. BA275842 and BA279191. Appellant sought, and was permitted, to represent himself. After a hearing, he was found in violation of the terms of his probation in Case Nos. BA275842 and BA279191. The court sentenced him to the upper term of three years in Case No. BA275842 and the middle term of one year in Case No. BA279191.
DISCUSSION
Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely), appellant contends the imposition of the upper term in Case No. BA275842 violated his right to a jury trial, in that it was based upon facts found by the court, not a jury. Appellant is correct. (Cunningham v. California(2007) --- S.Ct. ----, 2007 WL 135687.) We vacate his sentence and remand for resentencing.
We reject respondent's argument that appellant waived this issue by failing to raise it in the trial court. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089, 1103, who waived a Blakely challenge by failing to raise it at his sentencing hearing, appellant was sentenced after Black. Any objection would have been futile, as the trial court would have been required to follow Black. Appellant therefore did not waive the issue. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.) We therefore need not address appellant's claim that the failure to object constituted ineffective assistance of counsel. We nonetheless note that appellant could not rely upon such a theory, as he was representing himself at the time of sentencing.
DISPOSITION
Appellant's sentence is vacated and the case is remanded for resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BOLAND, J.
We concur:
RUBIN, Acting P. J.
FLIER, J.
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