P. v. Jones 6/21/07 CA1/3

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2007 » P. v. Jones 6/21/07 CA1/3

State: California

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

Docket No: A106916A

Case Date: 09/12/2007

Preview:Filed 6/21/07 P. v. Jones CA1/3 Opinion following remand from U.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, v. LEONARD C. JONES, Defendant and Appellant. (San Francisco County Super. Ct. No. 180997) A106916

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which has significant effects on California's criminal sentencing scheme. As explained below, we vacate the sentence and remand to the trial court for resentencing. BACKGROUND On August 29, 2006, this court issued its opinion affirming the judgment in this case. On February 20, 2007, the United States Supreme Court granted certiorari in the matter, vacated the judgment, and remanded to this court for further consideration in light of its decision in Cunningham, supra, 127 S.Ct. 856. Pursuant to this mandate, we recalled the remittitur and invited both parties to file supplemental briefs. We have reexamined our opinion in this case (People v. Jones (Aug. 29, 2006, A106916 [nonpub. opn.]), which we incorporate here by reference. There, relying upon People v. Black (2005) 35 Cal.4th 1238, we rejected defendant's contention that 1

imposition of the upper term and consecutive sentences on the basis of facts found by the court deprived him of his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We now reexamine that determination in light of Cunningham. The Trial Court's Sentencing Decision The trial court sentenced defendant to a term of 40 years to life in prison for the murder and 13 years consecutive for assault, including firearm enhancements. The total sentence included a consecutive mid-term sentence of three years for assault with a deadly weapon and aggravated 10-year enhancement, for personal use of a firearm. The trial court gave as reasons for the aggravated sentence that defendant "was convicted of other crimes for which consecutive sentences could have been imposed but for which this Court intends to sentence concurrently," and his behavior in this case showed he "is a serious danger to society." It ordered the terms to run consecutively based on its finding that the crimes and objectives were predominantly independent of one another. ANALYSIS In Cunningham, California's determinate sentencing law was held to violate a defendant's right to jury trial because California statutes permitted trial judges to determine facts used to impose an upper term sentence by a preponderance of the evidence. (Cunningham, supra, 127 S.Ct. at p. 868.) The People argue that no Cunningham error occurred because the court relied in part on the fact that defendant was convicted of other crimes for which the court could have but did not impose consecutive sentences. But, on this record, we cannot conclude beyond a reasonable doubt that the court would have imposed the same sentence had it considered only the other convictions and not that defendant posed a serious risk to society. Nor can we say that were the question presented to it, the jury would have concluded defendant posed a serious risk to society beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18.) Because the court imposed the aggravated terms in part on the basis of defendant's risk to society as determined by the court on a

2

preponderance of the evidence, we vacate the sentence and remand to the trial court for resentencing. The People maintain defendant forfeited his Blakely claim by failing to raise it at his August 15, 2005, sentencing hearing. We disagree. In Black, our Supreme Court analyzed California's sentencing scheme in light of Blakely and held that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (People v. Black, supra, 35 Cal.4th at p. 1244.) In light of that holding, and before Cunningham, it would have been futile for defendant to raise a Blakely objection at sentencing. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237-238.) We thus conclude defendant did not waive his claim of Blakely error by failing to object in the trial court. Although defendant further contends he was wrongly denied a jury trial on factors used to impose consecutive terms, the California Supreme Court foreclosed such a claim in People v. Black, supra, 35 Cal.4th at page 1262: "[A] jury trial is not required on the aggravating factors that justify imposition of consecutive sentences." That holding was not disturbed by Cunningham, which did not discuss the distinct issue of consecutive sentences imposed for separate crimes. Black is binding on this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and dispositive of this aspect of defendant's challenge to his sentence. DISPOSITION The judgment is vacated as to sentencing only. In all other respects, the judgment is affirmed for the reasons stated in our prior opinion in this case. The matter is

3

remanded to the trial court for resentencing. We express no opinion whether compliance with Cunningham will require a change in the actual sentence imposed in this case.

_________________________ Siggins, J.

We concur:

_________________________ Parrilli, Acting P.J.

_________________________ Pollak, J.

4

Download P. v. Jones 6/21/07 CA1/3.pdf