P. v. Lyons

Filed 10/19/07 P. v. Lyons CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

Pursuant to a negotiated settlement, defendant Paul Wayne Lyons pleaded no contest to one count of committing a lewd act on a child under the age of 14 years (Pen. Code,  288, subd. (a))^[1]in exchange for the dismissal, with a Harveywaiver,^[2]of two counts of forcible lewd acts on a child under 14 ( 288, subd. (b)(1)), three counts of forcible oral copulation ( 269, subd. (a)(4)) and a promise of no more than eight years in state prison.^[3]

At the sentencing hearing, the trial court stated it had read and considered statements of defendants other stepchildren regarding defendants having molested them, but even disregarding that information the court would impose the same sentence.^[4] The court then cited as aggravating factors that the victim was vulnerable, the crime was premeditated, and defendant had taken advantage of a position of trust; factors in mitigation were that defendant had no prior significant record and his prior performance on probation had been satisfactory.^[5] The court concluded the aggravating factors outweighed those in mitigation and sentenced defendant to the upper term of eight years.

On appeal, defendant challenges his sentence for various reasons, including a violation of the principles set forth in Apprendi, Blakely, and Cunningham.^[6] Because we conclude defendant is correct in his claim of Apprendi/Blakely error, we shall remand the case to the trial court for resentencing.

In Apprendi, the Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For Apprendi purposes the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)

In Cunningham, the Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law (DSL) violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point.)

On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that imposition of the upper term does not infringe upon the defendants 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 defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)

Here, the letters from defendants stepdaughters setting forth his prior molestations of them and other victims were facts neither admitted by defendants plea nor found by a jury beyond a reasonable doubt‑‑hence they were legally unavailable to the court for use as aggravating factors. Thus, defendants Sixth Amendment rights were violated by the imposition of the upper term sentence. (People v. Sandoval (2007) 41 Cal.4th 825, 837-838 (Sandoval).)

Nor was the courts error in considering the letters rendered harmless beyond a reasonable doubt, the standard applicable to Apprendi error,^[7]based upon the courts statement that even without consideration of the letters it would still arrive at the same sentence. This is so because the remaining factors cited by the court for aggravation‑‑victim vulnerability, premeditation, and taking advantage of a position trust‑‑were, like the content of the letters, facts neither admitted by defendants plea nor found by a jury beyond a reasonable doubt. While there does remain defendants 1987 conviction for misdemeanor theft as an available aggravating factor, the court expressly found that his prior record was insignificant. If the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, we cannot say beyond a reasonable doubt that the jurys verdict would have authorized the upper term sentence. (See Sandoval, supra, 41 Cal.4th at pp. 838-839.) Consequently, we cannot say the courts error in using the cited factors was harmless beyond a reasonable doubt and, therefore, we shall vacate defendants sentence and remand for resentencing under the procedure sanctioned in Sandoval. (Id. at pp. 846-847.)^[8]

DISPOSITION

Defendants conviction is affirmed, but his sentence is vacated and the matter is remanded to the trial court for resentencing in accordance with the procedure set forth in Sandoval, supra, 41 Cal.4th at pages 846-847.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

DAVIS , J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] Undesignated statutory references are to the Penal Code.

^[2]People v. Harvey(1979) 25 Cal.3d 754, 758-759.)

^[3]The victim was defendants stepson, whom defendant repeatedly molested from age nine to 12.

^[4]Defendant objected to the courts consideration of the letters on the grounds they were unsubstantiated and he had no opportunity for cross-examination of the letters authors.

^[5]Defendant was convicted of theft ( 484, 488) in July 1987, for which he received 10 days in jail and one year of probation.

^[6]Apprendi v. New Jersey(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington(2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); Cunningham v. California(2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).

^[7]See Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 477].

^[8]Our determination that defendants sentence must be vacated renders it unnecessary to address defendants contention that the trial courts error in using a preponderance of the evidence standard in finding the aggravating factors is structural error requiring automatic reversal.