P. v. Silla 1/2/08 CA2/8

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State: California

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

Docket No: B191989A

Case Date: 03/13/2008

Preview:Filed 1/2/08 P. v. Silla, Jr. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. MUSA SILLA, JR., Defendant and Appellant.

B191989 (Los Angeles County Super. Ct. No. SA038481)

APPEAL from a judgment of the Los Angeles Superior Court. Stephanie Sautner, Judge. Affirmed.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent. ********

In 2001, pursuant to a plea bargain, appellant Musa Silla, Jr., pled no contest to one count of rape by threat, arising from an incident that the prosecutor described as "date-rape." He was placed on five years of probation with numerous conditions. In 2006, just before the five-year period ended, probation was revoked and he was sentenced to prison for the upper term of eight years. On appeal, his sole contention is that imposition of the upper term violated his Sixth and Fourteenth Amendment rights to jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). On March 9, 2007, we filed our previous unpublished decision in this case. We found merit in appellant's contention and remanded the case for resentencing. The California Supreme Court granted respondent's petition for review. It has transferred the matter to us with directions to vacate our decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Each side has submitted supplemental briefing regarding those cases. Pursuant to the direction of the Supreme Court, our previous decision is vacated, and this new one is issued. We repeat our previous summary of the Blakely and Cunningham decisions, adding summaries of Black II and Sandoval (part A). We repeat the previous summary of the record with some additional facts (part B). We provide a new discussion of waiver based on Black II and Sandoval (part C). We repeat our analysis of the nature of the plea (part D). Utilizing Black II and Sandoval, we reanalyze the questions of Blakely error, prejudice, and remedy (part E). Based on Black II and our recent decision in People v. Brock (2007) 155 Cal.App.4th 903 (Brock), we affirm appellant's upper term sentence because appellant was on probation for a previous crime at the time of this offense, and showed unsatisfactory performance on probation through commission of the new offense. 2

A. Blakely, Cunningham, Black II, and Sandoval Blakely, supra, 542 U.S. 296 was decided on June 24, 2004. Like the present case, it involved a guilty plea. Pursuant to a plea bargain, the defendant pled guilty to a form of kidnapping. The sentencing court added over three years to his sentence based on a finding of an aggravating factor, "deliberate cruelty," that was specified in the Washington State Penal Code, but had not been admitted as part of the plea. Blakely held that the sentencing procedure deprived the defendant of his Sixth Amendment right to a jury determination of all the facts that were legally essential to his sentence. (Blakely, at pp. 301-305.) In doing so, it applied this rule from Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi): " `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.' " (Blakely, at p. 301, quoting Apprendi, at p. 490.) It further held "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." (Id. at p. 303.) Subsequent to Blakely, in People v. Black (2005) 35 Cal.4th 1238, 1254 (Black), the California Supreme Court held that California's determinate sentencing law (DSL) does not violate the Sixth Amendment because, under the California scheme, the upper term is the " `statutory maximum.' " Black was decided on June 20, 2005. It was overturned by the United States Supreme Court on January 22, 2007, in Cunningham, supra, 549 U.S. at page __ [127 S.Ct. at p. 871]. Cunningham held that it is the midterm of a DSL sentence, and not the upper term, that constitutes the statutory maximum sentence. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 871].) It further held that the DSL violates a defendant's Sixth Amendment right to jury, because it gives the trial

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judge, and not the jury, the authority to find the facts that permit an upper term. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 871].) In response to Cunningham, our Legislature revised the DSL effective March 30, 2007.1 The Judicial Council then amended the sentencing rules to conform to the new version of the DSL. (See Cal. Rules of Court, rules 4.4054.452.) The California Supreme Court provided guidance on the meaning of Cunningham in Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825, which were decided on July 19, 2007. We recently discussed Black II in Brock, supra, 155 Cal.App.4th 903, filed September 26, 2007. We explained: "Black II interpreted Cunningham to mean that `imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions.' [Citation.] Black II identified two aggravating circumstances, each of which was sufficient to support the upper term. One was the jury's finding that the defendant used force, which was made in the context of a finding that the defendant was ineligible for probation due to the use of force. The other was the defendant's criminal history." (Id. at pp. 912913.) Our opinion in Brock went on to hold that, as in Black II, the defendant's criminal history justified imposition of the upper term. The same day it decided Black II, the Supreme Court decided Sandoval, supra, 41 Cal.4th at pages 838-843, which reversed an upper-term sentence due to prejudicial Blakely error.
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A new version of the statute will be effective January 1, 2009. (Stats. 2007, ch. 3,

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