P. v. Lammers 12/21/04 CA6

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State: California

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

Docket No: H025678

Case Date: 04/13/2005

Preview:Filed 12/21/04 P. v. Lammers CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SIXTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, v. ROBIN RINALDO LAMMERS, Defendant and Appellant. Defendant Robin Rinaldo Lammers was charged with multiple counts of violating Penal Code section 4841 (grand theft), and related criminal violations of the Civil Code. The charges stemmed from defendant's marketing and sale of distributorships involving the sale of rebuilt automotive engines. A number of defendant's customers were defrauded, lost money they invested in the distributorships, and were not told about defendant's past felony conviction and other legal problems. After a three-day jury trial, defendant was convicted on September 14, 1990, of four counts of grand theft and eight related counts of violating the Seller Assisted Marketing Plan Act, Civil Code section 1812.200 et seq. (SAMP Act). A month and a half later, defendant failed to appear for sentencing, a bench warrant issued, and bail was H025678 (Santa Clara County Super. Ct. No. 132803)

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All further statutory references are to the Penal Code unless otherwise stated.

forfeited. Following defendant's apprehension 12 years later when he attempted to reenter the country, the court sentenced defendant to a total prison term of seven years. Defendant challenges the conviction, claiming, inter alia, (1) that there was insufficient evidence that his admission of a sentencing enhancement under section 12022.1 was knowing and voluntary, (2) error in the admission of evidence of defendant's prior felony conviction, and (3) various sentencing errors, including error under the United States Supreme Court's recent decision in Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531] (Blakely). We conclude that there was no prejudicial error requiring retrial of the charged crimes; however, we find insufficient evidence that defendant's admission of the enhancement was knowing and voluntary, and we conclude that there was Blakely error and other sentencing errors. We therefore reverse and remand the case for the limited purpose of resentencing. FACTS I. Introduction

There is no reporter's transcript available from the trial. On April 2, 2003, an administrator from the court below confirmed that the reporter's notes for the 1990 trial were destroyed and that the court reporter is deceased.2 We therefore granted on May 30, 2003, defendant's motion for leave to prepare a settled statement. On July 21, 2003, we granted defendant's motion for leave to prepare an additional settled statement (concerning motions in limine heard by the trial court on September 4, 1990). The trial judge and trial counsel met and ultimately the trial judge filed a settled statement, as well

The Superior Court noted that the court reporter's notes were destroyed "pursuant to Government Code Section 68152[, subdivision] (j)(7)." Defendant contends--a point not rebutted by the Attorney General--that destruction of the reporter's notes under that Government Code section was not proper because they were not destroyed at a time "after final disposition of the case." (Gov. Code,

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