P. v. Hughes 6/19/07 CA1/1

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State: California

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

Docket No: A105756D

Case Date: 08/22/2007

Preview:Filed 6/19/07 P. v. Hughes CA1/1 Opinion on remand from United States 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE THE PEOPLE, Plaintiff and Respondent, v. ROBERT S. HUGHES, Defendant and Appellant. A105756 (Sonoma County Super. Ct. No. MCR429522)

Defendant appealed from a judgment following pleas of guilty and imposition of a ten-year state prison term: the upper term of eight years on count one, and a two-year consecutive term on count two. His counsel raised no issues and asked this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to appellant, result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Upon review of the record we found no arguable issues, although we ordered an amendment of the abstract of judgment to require AIDS testing. We subsequently granted defendant's petition for rehearing to consider the impact of the decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), upon defendant's sentence. We concluded that under Blakely the upper term imposed upon defendant must be vacated, but otherwise affirmed the judgment as amended. The California Supreme Court then transferred the case back to this Court for reconsideration in light of People v. Black (2005) 35 Cal.4th 1238 (Black). In accordance with the opinion in Black we found no error in the imposition of upper and consecutive terms under the California Determinate

Sentencing Law (DSL), and therefore vacated our prior opinion and affirmed the judgment of the trial court. Then came Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham), in which the United States Supreme Court reversed the Black decision, and concluded, "Contrary to the Black court's holding, our decisions from Apprendi[1] to Booker[2] point to the middle term specified in California's statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, 166 L.Ed.2d 856, 876.) This case has now been remanded to us again for further consideration in light of Cunningham. DISCUSSION In accordance with the decision in Cunningham, we revert to our (pre-Black) conclusion that imposition of an upper term upon defendant was error, and turn to the issue of prejudice. We conclude that any sentencing error under Blakely is not a structural defect that demands automatic reversal. (See People v. Epps (2001) 25 Cal.4th 19, 29; People v. Vera (1997) 15 Cal.4th 269, 278; People v. Marshall (1996) 13 Cal.4th 799, 851

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