P. v. Silla 3/9/07 CA2/8

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State: California

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

Docket No: B191989

Case Date: 05/17/2007

Preview:Filed 3/9/07 P. v. Silla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 in part, reversed in part and remanded.

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.

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In 2001, appellant Musa Silla, Jr., pled no contest to one count of rape by threat, pursuant to a plea bargain. He was placed on five years of probation, with numerous conditions. In 2006, just before the five-year period ended, probation was revoked. He was then sentenced to prison for the upper term of eight years. On appeal, his sole contention is that under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), imposition of the upper term violated his rights to jury trial and due process, safeguarded by the Sixth and Fourteenth Amendments of the United States Constitution. After reviewing the record, we requested supplemental briefing on these issues: (1) Did appellant's guilty plea include a plea to the upper term? (2) Did the trial court violate appellant's Sixth Amendment right to a jury trial, as interpreted in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], by imposing an upper term sentence based on aggravating factors that were not found true by a jury? If so, what is the proper remedy? After considering the supplemental briefing, we have concluded that this case must be remanded for resentencing under Blakely, supra, 542 U.S. 296 and Cunningham v. California, supra, 127 S.Ct. 856 (Cunningham).1 A. Blakely and Cunningham 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, supra, 542 U.S. at pp. 301-305.) In doing so, it applied this
1

The California Supreme Court is currently considering the effect of Cunningham in numerous cases. 2

rule from Apprendi v. New Jersey (2000) 530 U.S. 466, 490: " `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, supra, 542 U.S. at p. 301, quoting Apprendi v. New Jersey, supra, 530 U.S. 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." (Blakely, supra, at p. 303, original italics.) 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, 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, 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 judge, and not the jury, the authority to find the facts that permit an upper term. (Cunningham, supra, 127 S.Ct. at p. 871.) B. The Record Appellant was charged with two counts of forcible rape (Pen. Code,

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