Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County, Super. Ct. No. JCF14228, Juan Ulloa, Judge.
IRION, J.
A jury convicted Edward Booth of first degree murder (Pen. Code, §§ 187, subd. (a), 189), two counts of attempted murder (§§ 187, subd. (a), 664), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), and two counts of criminal threats (§ 422). The trial court sentenced Booth to 122 years to life in prison.
All statutory references are to the Penal Code unless otherwise specified.
Booth appeals, contending that his sentence is invalid because: (i) the sentence with respect to certain of the counts (counts 4 and 7) was computed in violation of the applicable statutes; and (ii) the sentence was enhanced by the trial judge based on factual findings made by the court and not the jury in violation of his constitutional rights as defined in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856] (Cunningham). As Booth is correct with respect to both of his contentions, we reverse the judgment and remand for resentencing on the affected counts.
FACTS
On June 16, 2004, Booth, accompanied by Patrice Jefferson, drove to the Brentwood Apartments complex in Brawley to collect an outstanding drug debt owed to him by Marcus Williams. Williams was at the complex visiting his girlfriend, Jennifer Havens, who was staying with her cousin, Tamra Honeysuckle. When he arrived, Booth called Williams over to his car and asked for the money he was owed. When Williams approached, Booth got out of the car and pointed a semiautomatic handgun at him. Williams told Booth he had the money and asked why Booth was " 'tripping.' " Booth shot Williams in the leg and Williams fell to the ground.
Havens approached the two men, yelling. Booth walked towards her and shot her two times and she fell to the ground. Booth then walked into Honeysuckle's apartment. He first encountered 16-year-old Tiffany Walker, who was also visiting Honeysuckle; Walker was holding a baby. Booth held the gun against Walker's head and said, "Don't say anything." He pulled the trigger. The gun jammed. As Booth struggled with the gun, Honeysuckle ran into the kitchen, exclaiming, "Oh, my God. What are you doing?" Booth threatened to kill both Honeysuckle and Walker.
Booth then left Honeysuckle's apartment and shot Havens two more times as she lay on the ground. He jogged back to the car and drove away with Jefferson. Booth and Jefferson were arrested at the United States/Mexico border. Havens died as a result of the gunshot wounds.
DISCUSSION
On appeal, Booth contends that his sentence is invalid on two grounds. First, he asserts that the trial court imposed a sentence on counts 4 and 7 that is not authorized by the applicable sentencing statutes. Second, he contends the sentence is invalid because the court violated his constitutional rights by imposing upper term sentences on four of the counts and ordering that the sentences imposed run consecutively, based on factors found by the court by a preponderance of the evidence instead of by a jury beyond a reasonable doubt. We address each contention below after detailing the sentence Booth received.
A. Facts Regarding Sentencing
With respect to the seven counts for which the jury found Booth guilty and made accompanying true findings, the trial court sentenced Booth as follows:
Count 1, first degree murder of Jennifer Havens (§§ 187, subd. (a), 189): 25 years to life plus an additional 25 years to life for the accompanying true finding of personally discharging a handgun (§§ 190, 12022.53, subd. (d));
Count 2, attempted murder of Marcus Williams (§§ 187, subd. (a), 664): upper term of nine years, plus an additional 25 years to life for the accompanying true finding of personally discharging a handgun causing great bodily injury (§§ 664, subd. (a), 12022.53, subd. (d), 12022.7);
Count 3, assault with a semiautomatic firearm on Marcus Williams (§ 245, subd. (b)): upper term of nine years stayed, plus an additional 10 years stayed for the accompanying true finding of personally discharging a handgun (§§ 12022.5, subd. (a), 654);
Count 4, willful, deliberate and premeditated attempted murder of Tiffany Walker (§§ 187, subd. (a), 664): 25 years to life, plus an additional 10 years on the accompanying true finding of personally using a handgun (§ 12022.53, subds. (b), (a)(1) & (18)]);
Count 5, assault with a semiautomatic firearm on Tiffany Walker (§ 245, subd. (b)): upper term of nine years stayed, plus an additional 10 years stayed on the accompanying true finding of personally using a handgun (§§ 12022.5, subd. (a), 654);
Count 6, making a criminal threats to Tiffany Walker (§ 422): upper term of three years stayed (§ 654);
Count 7, making a criminal threat to Tamra Honeysuckle (§ 422): upper term of three years.
The court ordered that sentence on each of the nonstayed counts would run consecutively.
B. The Trial Court's Sentence on Counts 4 and 7 Conflicts with the Applicable Sentencing Statutes
Booth contends that the trial court's sentence on counts 4 and 7 is invalid on the ground that the court misapplied the applicable statutory sentencing provisions. The Attorney General agrees, as do we.
1. The Sentence on Count 4 is Erroneous
The jury convicted Booth in count 4 of attempted murder of Tiffany Walker and made additional factual findings that the attempted murder was willful, deliberate and premeditated, and that Booth personally used a handgun in committing the offense. The trial court sentenced Booth on count 4 to 25 years to life, plus an additional 10 years for having personally used a firearm. (§§ 187, subd. (a), 664, 12022.53, subds. (b), (a)(1) & (18).)
As Booth points out, under section 664, an attempt to commit willful, deliberate, and premeditated murder "shall be punished by imprisonment in the state prison for life with the possibility of parole." (§ 664, subd. (a).) Thus, the trial court's sentence of 25 years to life on count 4 is in error. Consequently, the sentence for count 4 must be modified to life with the possibility of parole, rather than 25 years to life.
The 10-year sentence on the applicable enhancement is unaffected. (§ 12022.53, subds. (b), (a)(1) & (18).)
2. The Sentence on Count 7 Was Calculated Erroneously
The jury convicted Booth on count 7 of making a criminal threat to Tamra Honeysuckle (§ 422). The trial court sentenced Booth on that count to three years in prison to run consecutively to his sentence on the other counts. As the trial court also sentenced Booth to a determinate sentence of nine years in prison on count 2, the imposition of a consecutive, determinate sentence on count 7 triggered section 1170.1. Under that statute, "the aggregate term of imprisonment" for the two counts must be "the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements." (§ 1170.1, subd. (a).) The principal term is defined as "the greatest term of imprisonment imposed" on the counts, and the subordinate term is determined by calculating "one-third of the middle term of imprisonment prescribed" for the remaining counts. (Ibid.; People v. Felix (2000) 22 Cal.4th 651, 653.)
Under this statutory framework, the nine-year sentence on count 2 is the principal term, and the resulting subordinate term for count 7 is eight months — one-third the two-year middle term for a conviction of criminal threats (§§ 18, 422). Thus, the trial court's three-year sentence (the upper term sentence for criminal threats) was erroneous.
3. The Abstract of Judgment Erroneously States that the Sentences on Counts 3, 5 and 6 Are Consecutive
The trial court ruled that sentence on counts 3, 5 and 6 should be stayed, but did not state whether those sentences should run consecutively. Where the trial court is silent as to whether a sentence will run consecutively or concurrently, the sentence is presumed to run concurrently. (§ 669.) Thus, as the Attorney General and Booth both recognize, the current abstract of judgment, which states that the stayed sentences on counts 3, 5 and 6 are to run consecutively, is in error.
C. The Upper Term Sentences Imposed on Counts 2, 3, 5 and 6 Must Be Reversed Under Cunningham
Booth contends that the trial court violated his constitutional rights as stated in Blakely, supra, 542 U.S. 296, by imposing upper term sentences on counts 2, 3, 5 and 6, and by imposing consecutive sentences on counts 1, 2, 4 and 7 based on facts found by the judge by a preponderance of the evidence, rather than by a jury beyond a reasonable doubt. In our initial resolution of this appeal, we ruled that Booth's Blakely challenge was precluded by our Supreme Court's rejection of identical contentions in People v. Black (2005) 35 Cal.4th 1238.
After we issued our initial opinion but before Booth exhausted his appeals to the federal and California Supreme Courts, the United States Supreme Court overruled Black in Cunningham, supra, 549 U.S. ____ [127 S.Ct. 856]. Consequently, we granted Booth's unopposed motion to recall the remittitur and requested further briefing from the parties in light of Cunningham. After we issued a second opinion in this case, our Supreme Court granted review on September 19, 2007, S153149 (as it had with dozens of other cases raising similar issues) and, after issuing two opinions analyzing the impact of Cunningham on California's sentencing system, subsequently transferred the appeal back to this court "with directions to vacate [our] decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 [(Black)] and People v. Sandoval (2007) 41 Cal.4th 825 ([Sandoval])." In light of this remand, we again analyze the constitutional issue.
People v. Arguello (1965) 63 Cal.2d 566, 573 (recalling remittitur and reversing judgment in light of decision of United States Supreme Court where time had not run for defendant to petition for certiorari from United States Supreme Court and thus judgment "was not final").
The order transferring the case cites California Rules of Court, rule 8.528(d), which permits the Supreme Court to "transfer [a] cause to a Court of Appeal without decision but with instructions to conduct such proceedings as the Supreme Court orders."
Neither party submitted supplemental briefing on remand despite the automatic opportunity to do so provided by the Rules of Court. (See rule 8.200(b)(1) ["Within 15 days after finality of a Supreme Court decision remanding or order transferring a cause to a Court of Appeal for further proceedings, any party may serve and file a supplemental opening brief in the Court of Appeal"].)
In Cunningham, the United States Supreme Court held that California's Determinate Sentencing Law (the DSL) violates a criminal defendant's right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution, as set out in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi). (Cunningham, supra, 549 U.S. ____ [127 S.Ct. at p. 860].) Under the Apprendi line of cases, "[e]xcept for 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.' " (Cunningham, at p. 868, quoting Apprendi, at p. 490.)
In Cunningham, supra, 549 U.S. ____ [127 S.Ct. 856], the Court concluded that the DSL violated "Apprendi's bright-line rule" because, under the DSL, circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt. (Cunningham, at p. 868.) Stating that " '[t]he "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,' " Cunningham concluded that "the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum." (Cunningham, at p. 868.) Consequently, imposition of an upper term sentence based on facts (other than the fact of a prior conviction) found by a judge is unconstitutional. (Ibid.) Cunningham did not address the portion of the DSL that governs consecutive sentencing.
1. The Upper Term Sentences Must Be Reversed
In the instant case, the trial court imposed an upper term sentence on counts 2, 3, 5 and 6. In doing so, the trial court stated the only factor in mitigation was that "the defendant has no prior convictions." The court found the aggravating factors "clearly" outweighed this mitigating factor; the "vulnerability of the victims . . . is established"; and "[c]learly, if not imprisoned, the defendant is likely to continue to be a danger to others." The court added, "This is clearly an upper term case, no question."
Relying on the ruling in our initial decision reversing the sentence on count 7 on statutory grounds (People v. Booth (Nov. 7, 2006, D047740) [nonpub. opn.]), Booth withdrew his initial challenge to the constitutionality of the upper term sentence imposed on that count.
While recognizing that Cunningham "generally precludes a trial court from finding facts to impose an upper term sentence," the Attorney General contends that resentencing is not required in the instant case because Booth's sentence "fully satisfied the constitutional requirement[s]" and because any error was harmless under Chapman v. California (1967) 386 U.S. 18, 24. This argument is based on the Attorney General's assertion that the trial court's finding that Walker was vulnerable "was correct" because there is "no dispute" that Walker, a 16-year-old holding an infant, was a vulnerable victim. We believe the Attorney General's legal analysis to be flawed.
The trial court's stated reasons for imposing upper terms were constitutionally deficient because they relied on facts that were not admitted by the defendant, the "fact of a prior conviction," or found by the jury "beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 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"]; Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856] [applying Apprendi and Blakely, supra, 542 U.S. 296, to invalidate the DSL].) Thus, "[n]one of the aggravating circumstances cited by the trial court come within the exceptions set forth in Blakely," and consequently the upper terms imposed violate the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 837 [reversing imposition of upper term where none of the factors cited by trial court satisfied constitutional requirements under Blakely/Apprendi].)
We disagree with the Attorney General's contention that this constitutional violation can be deemed harmless because "the jury would have found at least one . . . aggravating circumstance" — the vulnerability of Walker — beyond a reasonable doubt. That "[t]he victim was particularly vulnerable" is a fact relating to the crime that a trial court is instructed to consider in sentencing. (Rule 4.421(a)(3).) However, the Attorney General does not explain how we can conclude that had this factor somehow been placed before the jury, the jurors would have unanimously concluded beyond a reasonable doubt that it applied. There are, in fact, numerous practical problems with making such a hypothetical determination — for example, there is no statutory mechanism for placing a victim's "particular[] vulnerab[ility]" before the jury, and no accepted definition of that term for such a purpose. (Sandoval, supra, 41 Cal.4th at p. 837.) Indeed, as our Supreme Court has noted with respect to this very issue, sentencing factors were never intended for the jury, and thus are often phrased in "a somewhat vague or subjective" manner and can, as here, require "an imprecise quantitative or comparative evaluation of the facts." (Id. at p. 840.) This makes it "difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court." (Ibid. [recognizing, as well, that the appellate record may not present a complete picture of the applicability of such factors because a defendant would have little incentive to dispute, before the jury, such factors as a victim's vulnerability that were "not directly at issue in the trial," id. at p. 839].) Further, Walker's vulnerability, even if established, would only support an upper term sentence on counts 5 and 6, the counts for which she was the victim, and thus we would still be required to remand the case for resentencing in light of the unconstitutionality of the upper terms on the other challenged counts. In light of these factors, then, we conclude that this is not a case where we can confidently conclude, beyond a reasonable doubt, that the Sixth Amendment error was harmless. Consequently, we remand the case to the trial court to conduct a new sentencing hearing as described in Sandoval.
While Booth contends, relying on case law and analysis, that a jury could have found Walker's particular vulnerability not to have been proven beyond a reasonable doubt, the Attorney General merely asserts in conclusory fashion that Walker "was a vulnerable victim."
2. The Imposition of Consecutive Sentences Did Not Violate Booth's Constitutional Rights
Booth also contends that the trial court violated his constitutional right to a jury trial by imposing consecutive sentences, arguing that although Cunningham "did not directly rule on California's concurrent-consecutive sentencing scheme," the reasoning of the case "makes clear that such a system . . . violates the Sixth Amendment."
Booth's attempted analogy of California's consecutive/concurrent sentencing framework to the upper term/middle term framework struck down in Cunningham is unavailing because under the concurrent/consecutive sentencing system established by section 669, there is no mandatory statutory presumption. (§ 669 [when a defendant is convicted of multiple offenses, the trial court "shall direct whether the terms of imprisonment . . . to which he or she is sentenced shall run concurrently or consecutively"].) Rather, the trial court is granted full discretion to sentence consecutively or concurrently — discretion that is not conditioned, as it is in selecting an upper term, upon any additional factual findings. (People v. Reeder (1984) 152 Cal.App.3d 900, 923; People v. Hernandez (2007) 147 Cal.App.4th 1266, 1270.) Thus, the jury's guilty verdict on multiple counts alone authorizes the imposition of consecutive sentences, and consequently no Cunningham error occurs when the trial court imposes consecutive sentences. (Black, supra, 41 Cal.4th at p. 823 ["The high court's decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences"]; Hernandez, supra, 147 Cal.App.4th at p. 1271 ["entrusting to trial courts the decision whether to impose concurrent or consecutive sentencing under California's sentencing laws is not precluded by the decisions in Apprendi, Blakely, and Cunningham"].) We therefore reject Booth's contention that the trial court erred in imposing consecutive sentences.
While it is true that the trial court is generally required to state a reason for its decision to run sentences concurrently or consecutively (rule 4.406), this type of limitation on the trial court's sentencing discretion does not implicate the Sixth and Fourteenth Amendments. (Hernandez, supra, 147 Cal.App.4th at p. 1271; cf. United States v. Booker (2005) 543 U.S. 220, 264 [approving as constitutionally sound sentencing system where district courts are required to "consult the [sentencing] Guidelines and take them into account when sentencing," and sentences must be reasonable].) Similarly, the fact that if the court fails to exercise its discretion, "the term of imprisonment on the second or subsequent judgment shall run concurrently" does not establish a mandatory statutory presumption within the meaning of the Cunningham line of cases. (§ 669; Hernandez, at p. 1271.) Simply put, neither of these factors change the dispositive factor that consecutive sentences can be imposed based upon the jury's verdicts alone. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 865, 868].)
DISPOSITION
The judgment is reversed in part and the case is remanded for the trial court to conduct a new sentencing hearing. In all other respects, the judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.
All further rule references are to the California Rules of Court.