P. v. Davie 3/4/05 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B173037

Case Date: 05/18/2005

Preview:Filed 3/4/05 P. v. Davie CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

THE PEOPLE, Plaintiff and Respondent, v. TODD VINCENT DAVIE, Defendant and Appellant.

B173037 (Los Angeles County Super. Ct. No. VA074008)

APPEAL from a judgment of the Superior Court of Los Angeles County, Larry S. Knupp, Judge. Affirmed in part; reversed in part. Ronnie Duberstein, 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, Victoria B. Wilson and John Yang, Deputy Attorneys General for Plaintiff and Respondent. ______________________________

In this appeal, Todd Davie challenges the court's selection of the upper term for his sentence, claiming it violated his right to jury trial under Blakely v. Washington (2004) ___ U.S.___ [124 S.Ct. 2531]. We agree, and reverse and remand for resentencing.

FACTUAL AND PROCEDURAL SUMMARY In November 2003, appellant was a psychiatric patient at Metropolitan State Hospital in Norwalk. On the morning of November 19, as Dr. Moheb Beshay walked down the hospital hall, appellant jumped out from the bathroom and hit Dr. Beshay in the cheek. Appellant punched the doctor in the face and body and threw him to the floor. Dr. Beshay lost consciousness for a moment, then became aware that appellant was on top of him, repeatedly hitting him. As appellant was pulled away by hospital staff, he was heard threatening to kill the doctor: "You get me medication and distress my body and I'm going to kill you for that." Appellant was charged in count one with assault by means likely to produce great bodily injury, with an allegation that he personally inflicted great bodily injury, and in count two with making criminal threats. It also was alleged that appellant served a prior prison term. Appellant initially plead not guilty, then changed his plea to not guilty by reason of insanity. A jury found appellant guilty on both counts, but found the great bodily injury allegation was not true. Appellant waived the right to jury trial on the insanity issue and the prior prison term allegation. The court found that he was not insane at the time of the crime, and found the prior prison term allegation true. The court sentenced appellant to the upper term of four years on count one, with a one year enhancement for the prior prison term. The court imposed a concurrent midterm of two years on count two. Appellant filed this timely appeal.

DISCUSSION Relying on Blakely v. Washington, supra, 124 S.Ct. 2531, appellant claims the trial court's selection of the upper term on count one violated his constitutional right to 2

have a jury decide all facts necessary for imposition of this sentence. It is our view that a Blakely argument may be presented even if it was not raised before the trial court, where, as here, sentencing occurred before that case was decided by the Supreme Court. We turn to the merits of the argument. In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 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." In Blakely, the Supreme Court explained that "the `statutory maximum' for Apprendi purposes 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. . . . In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (124 S.Ct. at p. 2537.) Under Penal Code section 1170, subdivision (b), "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." Like the "standard range" in the Washington sentencing scheme considered in Blakely, the middle term under California law is the maximum sentence the court can impose "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . ." (Blakely, supra, 124 S.Ct. 2531, 2537.) We conclude that Blakely applies to the California determinate sentencing law.1 In our case, the court stated the basis for its imposition of the upper term: "In this matter, the court finds that the aggravating factors, which are that the matter was premeditated and planned, defendant's prior convictions as an adult or commissions of In United States v. Booker (2005) ___ U.S. ___ [125 S.Ct. 738], the Supreme Court addressed the impact of Blakely on the federal sentencing guidelines. The California Supreme Court has requested further briefing in People v. Black (S126182) on the application of Booker to the California sentencing scheme. Pending further guidance, we adhere to the position we have taken, that Blakely applies to the California determinate sentencing law. 3
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crimes are numerous and of increasing seriousness. He has served a prior prison term. It appears to me that the defendant is dangerous to society. I find no mitigating factors. The court will impose the high-base term of four years on count 1." Appellant waived jury on the prior prison term allegation, and the court then found that allegation true beyond a reasonable doubt. Hence, that fact was potentially available as a factor in aggravation under the standards set out in Blakely. However, the court imposed a one-year enhancement for the prior prison term. A fact used to enhance a prison sentence may not also be used to impose the upper term. (Pen. Code,

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