Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. 54533, Patrick J. O’Hara, Judge.
Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Harris, Acting P.J., Cornell, J., Gomes, J.
OPINION
Appellant, Rogelio Robles, was convicted of voluntary manslaughter by a jury and sentenced to the aggravated term of 11 years. On appeal, Robles contends the court committed Blakely error when it sentenced him to the aggravated term.
Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531].
On July 19, 2007, in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the California Supreme Court explained the effect of Cunningham v. California (2007) 549 U.S. __, [127 S.Ct. 856.] (Cunningham). We are guided by those cases in analyzing the Blakely issue here. (Blakely v. Washington (2004) 542 U.S. 296.) We take from our prior opinion the discussion of the procedural history and the facts. We analyze the sentencing issue based on Cunningham and Sandoval. We affirm the judgment after concluding that any Blakely error was harmless beyond a reasonable doubt.
Procedural History
On January 31, 2001, a jury convicted Robles of voluntary manslaughter. (Pen. Code, § 192, sub d. (a).) On March 8, 2001, the trial court sentenced Robles to the aggravated term of 11 years. Following a timely appeal, in an unpublished opinion dated January 22, 2003, this court reversed Robles’s conviction based on instructional error.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Following a retrial on December 8, 2003, Robles was again convicted by a jury of voluntary manslaughter. On May 5, 2004, the court again sentenced Robles to the aggravated term of 11 years.
On June 8, 2004, Robles filed a timely appeal. On March 2, 2005, Robles filed his opening brief, citing Blakely v. Washington, supra, 542 U.S. 296 to argue that imposition of the aggravated term based on facts not found true by a jury beyond a reasonable doubt violated his right to a jury trial under Sixth and Fourteenth Amendments.
On October 19, 2005, we relied on People v. Black (2005) 35 Cal.4th 1238 to reject this contention.
On November 17, 2005, Robles petitioned for review in the California Supreme Court. Following the denial of this petition, on March 29, 2006, Robles petitioned for a writ of certiorari in the United States Supreme Court.
On January 22, 2007, the United States Supreme Court issued its opinion in Cunningham v. California, supra 549 U.S. ___ [127 S.Ct. 856], holding that Blakely applies under California law.
On February 20, 2007, the United States Supreme Court granted Robles’s petition for writ of certiorari, vacating the judgment in this matter and remanding it back to this court for further consideration in light of Cunningham.
On March 16, 2007, Robles filed a supplemental opening brief again arguing that under Cunningham, the imposition of the aggravated term based on facts not found true by a jury violated his right to a jury trial under the Sixth and Fourteenth Amendments.
Robles also contended that: (1) the People waived the right to retry the aggravating circumstances found by the court; and (2) California case law and the Fifth Amendment’s double jeopardy clause barred a retrial of the aggravating circumstances found by the court, thus requiring that his aggravated term be reduced to the middle term. We will not address these contentions further because they are moot in light of our decision to affirm the judgment.
On June 5, 2007, in an unpublished opinion, we concluded that the court committed Blakely error and we remanded the matter to the trial court for further proceedings.
On July 9, 2007, respondent filed a petition for review in the California Supreme Court.
On August 8, 2007, the Supreme Court granted review and transferred the matter to this court with directions to vacate our decision and reconsider the cause in light of Black II and Sandoval.
Neither party filed a brief as permitted by California Rules of Court, rule 8.200(b)(1).
All further rule references are to the California Rules of Court.
FACTS
On February 24, 2000, Robles was driving a car in Visalia with Humberto Iniguiz, Felipe Aceves, and Adolfo Godinez. Robles had in his possession a .30-caliber rifle, which he gave to Iniguiz, the front seat passenger, to hold.
At approximately 1:00 a.m., Robles pulled over on Mooney Boulevard because Iniguiz, who had been drinking, felt nauseated. During the stop, Aceves got out of the car and began spray-painting graffiti on a car belonging to Samson San Miguel. Meanwhile, San Miguel and Gabriel Ward came out of a house located on a cul de sac that abutted Mooney Boulevard and began fighting with Aceves.
Robles then exited the car with the rifle and fired four shots at San Miguel and Ward, striking Ward, who was unarmed, in the back of the head as he ran back toward the house in the cul-de-sac. During the trial, Robles testified that he recalled firing three times in the direction of Ward and San Miguel in order to scare them because they were beating his friend.
In sentencing Robles to the aggravated term on his voluntary manslaughter conviction, the trial court stated:
“This individual, Mr. Ward, although he was engaged in a fight with somebody who was vandalizing property there, spray painting a car, once that confrontation clearly ended, Mr. Ward was on his way out as fast he could when this defendant aimed, pulled the trigger more than once, and shot him in the head. This is an aggravated offense. I’m going to make the following findings:
“The crime involved great violence, great bodily harm, [disclosing] a high degree of viciousness or callousness as the defendant fired a high powered rifle multiple times [rule 4.421(a)(1)].
“Defendant was armed at the time of the commission [of the offense] [rule] 4.421(a)(2).
“[The victim] was particularly vulnerable and unarmed, running away when the defendant discharged the firearm, [rule] 4.421(a)(3).
“Factor in mitigation, defendant has no prior record of criminal conduct, [rule 4.423(b)(1)].
“Based on the significance of the offense, of course, I [] believe that probation is inappropriate.
“Based upon the factors in aggravation, also, … I believe [it is] the aggravated term, and I am certain of this, based upon the seriousness of the offense, the aggravated term is more appropriate.”
DISCUSSION
“The United States Supreme Court has recognized two exceptions to a defendant's Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury's verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (People v. Sandoval, supra, 41 Cal.4th at pp. 836-837.)
Rule 4.421(a)(2) allows the court to find an aggravating circumstance if “the defendant was armed with or used a weapon at the time of the commission of the crime[.]”
Here, during his testimony, Robles admitted he was armed within the meaning of this rule when he testified that in committing the manslaughter offense, he fired a rifle three times at the victim and his friend. Thus, the court imposed the aggravated term based on at least one aggravating circumstance that was based on facts admitted by Robles.
In People v. Black (2007) 41 Cal.4th 799, our Supreme Court held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to a jury trial.” (Id. at pp.819-820.) Accordingly, we conclude that the court did not commit Blakely error.
However, even if we found error occurred, we would find the error harmless.
“Our high court has recently confirmed that the deprivation of the right to a jury trial on the issue of aggravating circumstances for sentencing is reviewed under a Chapman harmless error standard. (Sandoval, supra, 41 Cal.4th at p. 838; see also Washington v. Recuenco (2006) 548 U.S. ___, [126 S.Ct. 2546, 165 L.Ed.2d 466] [Blakely sentencing error is not structural error mandating reversal without consideration of whether error is harmless].) Under this analysis, ‘we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.’ (Sandoval, supra, at p. 838.) Thus, ‘if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.’ (Id. at p. 839.)” (People v. Ayala (2007) 155 Cal.App.4th 604, 629-630, emphasis added.)
As noted above, the court found as an aggravating circumstance that Robles was armed when he committed the voluntary manslaughter offense and during his testimony, Robles conceded using a rifle to commit this offense. In view of this, we conclude beyond a reasonable doubt that a jury applying the beyond-a-reasonable doubt standard would have found that Robles was armed and used a weapon within the meaning of rule 421(b)(2) when he committed the voluntary manslaughter offense. Further, since only one circumstance is necessary to support the aggravated term, in accord with the above authorities, we further conclude that the trial court’s Blakely error was harmless.
DISPOSITION
The judgment is affirmed.