P. v. Naff

Filed 3/19/07 P. v. Naff CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Kathleen C. Lyon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

By information filed February 22, 2006,^[1]appellant Ronald Naff was charged with possession or purchase of cocaine base for purposes of sale (Health & Saf. Code,  11351.5). On April 4, appellant made, and the court denied, a motion to suppress evidence (Pen. Code, 1538.5). On April 17 and again on April 24, appellant moved for the appointment of substitute counsel, pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court denied both motions. On April 26, a jury convicted appellant of the charged offense. On May 24, the court imposed the upper term of five years; suspended execution of sentence; and ordered appellant committed to the California Rehabilitation Center pursuant to Welfare and Institutions Code section 3051. The instant appeal followed.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d. 436.) Appellant has not responded to this courts invitation to submit additional briefing.

FACTUAL BACKGROUND

Facts - Prosecution Case

City of Bakersfield Police Officers Daniel Brewer and Jess Beagley were on foot patrol inside the Bakersfield Hotel in Bakersfield when, at approximately 9:30 p.m. on January 31, they encountered appellant outside of appellants room as appellant was leaving the room. Officer Brewer, as he was speaking with appellant, looked inside the room and saw a box of plastic bags, a mirror, two razor blades and several objects on the mirror that he suspected were rock cocaine. The two officers entered the room, searched it and found, inter alia, what was later determined to be approximately 28 grams of a substance containing cocaine base; two electronic digital scales of the kind used by drug sellers to weigh drugs for the purpose of individually packaging smaller amounts for sale; two razor blades; six clear glass pipes of the kind used to smoke rock cocaine; and a piece of paper which bore notations of names and dollar amounts and which, the officers opined, was a pay and owe sheet, i.e., a record of illegal drug transactions. Both officers opined that the cocaine base found in the room was possessed for purposes of sale.

Facts - Defense Case

Appellant testified the rock cocaine found in his room was for his personal use.

Sentencing

The court found, as a circumstance in mitigation, that appellants performance on probation in a prior case was satisfactory.

As circumstances in aggravation, the court found as follows: a large quantity of contraband was located; appellant had suffered numerous prior convictions; he had served three prior prison terms; his prior performance on probation and parole was unsatisfactory in that he . . . continued to reoffend and violate the law; and at the time of the instant offense he was the subject of an active warrant . . . .

The court stated, I give [the last of these factors] very little weight, . . . but clearly the other circumstances outweigh the one circumstance in mitigation.

DISCUSSION

Because the court imposed the upper term based on factors found by the court and not by the jury, we address the issue of whether the imposition of the upper term violated appellants right to a jury trial under the Sixth Amendment to the United States Constitution.

In Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely), the United States Supreme Court held: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 301.) Thereafter, in People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court held that the imposition of upper terms under California law does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . does not implicate a defendants Sixth Amendment right to a jury trial. (Id. at p. 1244.)

Recently, however, in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), the United States Supreme Court found that Black was wrongly decided. The high court held: Under Californias DSL [determinate sentencing law], an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. [Citation.] [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord withBlakely, . . . the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Citation.] ([T]he statutory maximum . . . is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (emphasis in original)). Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates [the] . . . bright-line rule [announced in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348]]: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.] (Cunningham, supra, 127 S.Ct. at p. 868.)

Here, the trial court based its imposition of the upper term on at least two aggravating factors that did not come within the Blakely prior conviction exception, viz., the large quantity of contraband and the fact that appellant was the subject of an outstanding arrest warrant at the time of the instant offense. Because these factors were found by the judge, who was obligated to apply only a preponderance-of-the-evidence standard, and were not found true beyond a reasonable doubt by a jury, reliance on these factors was error under Cunningham and Blakely.

This is not, however, the end of our analysis. A single factor in aggravation suffices to support imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730.) And here, the court based the imposition of the upper term on at least two recidivist factors, i.e., appellants numerous prior convictions and his three prior prison terms. Therefore, we cannot say for certain on this record that the same term may not be imposed anew, consistent with Cunningham. However, because the court found at least two nonrecidivist factors, i.e., factors upon which, under Cunningham, it could not rely, and one mitigating factor, we likewise cannot say with any confidence that the court would have imposed the upper term had it been aware it could not rely on nonrecidivist factors.

An appellate court is not restricted to the remedies of affirming or reversing a judgment. Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial. [Citations.] [Citation.] (People v. Edwards (1985) 39 Cal.3d 107, 118.)

An analogous situation exists here. Accordingly, the judgment of sentence is vacated, with directions as follows:

No later than 30 days after the filing of the remittitur in the trial court, both the trial court and the prosecutor have the right to initiate in writing a contested resentencing hearing to be held no later than 60 days after the filing of the remittitur in the trial court for the trial court to impose sentence in compliance with Cunningham. If neither the trial court nor the prosecutor does so, the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect the imposition of a middle term instead of an aggravated term.

Following independent review of the record, we have concluded that no other reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment of conviction is affirmed. The judgment of sentence is vacated with directions to the trial court to proceed as ordered in this opinion.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^*Before Harris, Acting P.J., Cornell, J., and Gomes, J.

^[1] All references to dates of events are to dates in 2006.