P. v. Tu 8/27/07 CA1/2

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State: California

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

Docket No: A105905A

Case Date: 12/12/2007

Preview:Filed 8/27/07 Opinion filed after remand

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. VINCENT TU, Defendant and Appellant. (San Francisco County Super. Ct. Nos. 182774, 183407-3) A105905

This matter comes to us on remand from the United States Supreme Court, following grant of certiorari and vacation of the judgment, for our "further consideration in light of Cunningham v. California[ (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham)." In his supplemental brief on remand, appellant Vincent Tu urges that his Sixth Amendment rights as expounded in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 297 (Blakely) and Cunnningham, supra, 549 U.S. __ [127 S.Ct. 856] were violated. This is so, he insists, because the trial court imposed an upper term sentence based on (1) several nonrecidivist factors which should have been submitted to a jury but erroneously were not; and (2) his record of prior sustained juvenile petitions, reliance upon which is subject to "considerable doubt." We conclude that under Apprendi and our Supreme Court's recent decision in People v. Black (2007) 41 Cal.4th 799 [62 Ca.Rptr.3d 569] (Black II), reliance on this latter factor sufficed to empower the trial court to impose the upper term and consider other relevant factors which were not decided by the jury. Accordingly, imposition of the upper term sentence did not violate appellant's Sixth Amendment rights and we affirm the judgment. 1

I. BACKGROUND Appellant Vincent Tu entered a negotiated disposition in February 2002, pursuant to which he pleaded guilty to voluntary manslaughter and attempted second degree murder and admitted related personal use of firearm allegations for each count. As well he pleaded guilty to conspiracy to obstruct justice, and agreed to additional terms. Later appellant moved unsuccessfully to withdraw his plea. On March 3, 2004, the trial court entered sentence, as follows: (1) an upper 11-year term for voluntary manslaughter; (2) a consecutive upper 10-year term for the related personal use of a firearm allegation; (3) a consecutive two-year four-month term (one-third of middle) for attempted murder; (4) a consecutive one-year four-month term (one-third of middle) for the related firearm allegation; and (5) a consecutive eight-month term (one-third of middle) for the conspiracy to obstruct justice count. His total sentence was 25 years four months. (People v. Tu (Nov. 29, 2005, A105905) [nonpub. opn.].) At the sentencing hearing, the trial court articulated several aggravating factors to support the upper term on count 1, as follows: (1) the crime involved great violence and disclosed a high degree of callousness (Cal. Rules of Court,1 rule 4.421(a)(1)); (2) appellant engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)); (3) appellant had prior sustained petitions in juvenile court (rule 4.421(b)(2)); and (4) appellant was armed with and used a weapon at the time of committing the offense (rule 4.421(a)(2)). With respect to the juvenile petitions, the record shows sustained adjudications for accessory to robbery, felony burglary and misdemeanor burglary. The court conducted a second hearing a week later to augment the sentencing record. At that time it made the additional finding that appellant "was uncooperative with the district attorney's office with respect to the investigations that he committed

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All references to rules are to the California Rules of Court. 2

himself to cooperate with and for that additional reason, . . . I am selecting the term of 25 years, four months." On appeal to this court, appellant asserted, among other matters, that the trial court impermissibly imposed upper terms and consecutive sentences based on facts not found by the jury or admitted by him, in violation of Blakely. We concluded that this argument lacked merit because in People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court 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." (Black I, at p. 1244; People v. Tu, supra, A105905.) Thereafter appellant petitioned the California Supreme Court for review. That court denied the petition without prejudice to any relief to which he might be entitled after the United States Supreme Court determined in Cunningham the effect of Blakely on California law. Appellant appealed to the United States Supreme Court and, as stated above, that court vacated judgment and remanded to us for additional consideration in light of Cunningham. Supplemental briefs followed. II. DISCUSSION A. Legal Background 1. Relevant United States Supreme Court Rulings A series of United States Supreme Court opinions sets the stage for this remand. We begin with Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres) in which the Supreme Court construed a federal statute that prescribed a sentence of no more than two years for an illegal immigration offense, but allowed a maximum sentence of 20 years if the defendant had suffered certain prior convictions. (Id. at pp. 227-229.) Needless to say, the defendant received a sentence well in excess of two years. (Id. at p. 227.) Of note, the defendant had admitted his recidivism at the time of pleading guilty and did not assert subsidiary standard of proof claims with respect to sentencing. (Id. at pp. 247-248.) The court 3

rejected the defendant's theory that the prior conviction allegation was an element of the offense that must be stated in the indictment and proven by the government to a jury beyond a reasonable doubt. (Id. at p. 239.) Further, it emphasized that recidivism has traditionally served as a basis for increasing an offender's sentence, the factor goes to punishment only and does not relate to the commission of the underlying crime. (Id. at pp. 243-244.) The next term the court clarified the scope of the Almendarez-Torrez opinion, explaining that it "stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being that recidivism increasing the maximum penalty need not be so charged." (Jones v. United States (1999) 526 U.S. 227, 248 (Jones).) Further, the court emphasized that the holding of Almendarez-Torres "rested in substantial part on the tradition of regarding recidivism as a sentencing factor." (Jones, at p. 249.) This emphasis in turn suggested a "possible constitutional distinctiveness" because "unlike virtually any other consideration used to enlarge the possible penalty for an offense, and certainly unlike the factor before us in this case, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (Ibid.) The following year the court confirmed that due process as well as the Sixth Amendment notice and jury trial guarantees mandate that "[o]ther 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." (Apprendi, supra, 530 U.S. at pp. 476-477, 490.) At issue in Apprendi was the application of a hate-crime statute providing for an extended term of imprisonment in cases where the trial judge found, by a preponderance of the evidence, that the defendant acted with a purpose to intimidate the victim based on the victim's particular characteristics. (Id. at pp. 468-469.) This challenged procedure was "an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system." (Id. at p. 497.) 4

Citing Jones, the Apprendi court characterized the Almendarez-Torres opinion as representing "at best an exceptional departure" to the general rule that penaltyenhancing findings must be determined by a jury beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 487.) In addition, it emphasized that because Almendarez-Torres "had admitted the three earlier convictions for aggravated felonies--all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own--no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the [c]ourt." (Id. at p. 488.) Further, the conclusion in that case "turned heavily upon the fact that the additional sentence to which the defendant was subject was `the prior commission of a serious crime.' [Citations.] Both the certainty that procedural safeguards attached to any `fact' of prior conviction, and the reality that AlmendarezTorres did not challenge the accuracy of that `fact' in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a `fact' increasing punishment beyond the maximum statutory range." (Apprendi, at p. 488.) And finally, distinguishing prior convictions from other factors relied on by judges to enhance sentences, the court explained: "[T]here is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof." (Id. at p. 496.) In Blakely, supra, 542 U.S. at page 303, the United States Supreme Court defined the relevant "statutory maximum" for Apprendi purposes as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Thus, "the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the

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facts `which the law makes essential to the punishment,' [citation], and the judge exceeds his proper authority." (Id. at pp. 303-304.) Finally, earlier this year in Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], the United States Supreme Court overruled Black I and struck down the upper term sentencing provisions of our determinate sentencing law (DSL): "Factfinding to elevate a sentence from 12 to 16 years,[2] our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies. [

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