P. v. Jones

Filed 6/21/07 P. v. Jones CA1/3

Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which has significant effects on Californias criminal sentencing scheme. As explained below, we vacate the sentence and remand to the trial court for resentencing.

PROCEDURAL BACKGROUND

In September 2005, we issued an opinion affirming defendants convictions for murder, domestic violence, and assault by means likely to produce great bodily injury. (People v. Jones (Sept. 26, 2005, A106943) [nonpub. opn.].) Relying on People v. Black (2005) 35 Cal.4th 1238, we rejected defendants argument that his right to jury trial was violated by the courts finding of aggravating factors at sentencing.

On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of Cunningham, supra, 127 S.Ct. 856. Pursuant to its mandate, we have recalled the remittitur. We have reexamined our initial opinion in this case, and incorporate it by reference, and we have received supplemental briefing from the parties.

The Trial Courts Sentencing Decision

The trial court imposed the upper term of four years for defendants domestic violence conviction, with consecutive upper terms on enhancements for infliction of great bodily injury (five years) and use of a firearm (10 years), after it found several aggravating factors: the victim was particularly vulnerable; the act involved great violence, threat of great bodily injury, and the actual infliction of great bodily injury; defendant was armed with and used a weapon; and defendant had engaged in a pattern of violent conduct indicating a serious danger to society, with particular reference to the fact that the victim had suffered many acts of violence [at the hands of] this defendant that span many, many years.^[1]

ANALYSIS

In Cunningham, Californias determinate sentencing law was held to violate a defendants right to jury trial because California statutes permitted trial judges to determine facts used to impose an upper term sentence by a preponderance of the evidence. (Cunningham, supra, 127 S.Ct. at p. 868.)

The People argue that any Cunningham error was harmless in this case, because the jury found true the infliction of great bodily injury and personal use of firearm enhancements in connection with the domestic violence conviction. But even assuming, as the People argue, that the jury would have found at least one of these aggravating circumstances to be true, we cannot tell from the record whether the court would have imposed the same sentence if it had not considered the additional aggravating factors not considered by the jury, but that Cunningham would require the jury to find true beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Because the sentencing court relied in part on aggravating factors determined by the court upon a preponderance of the evidence, we remand for resentencing in accordance with the requirements of Cunningham.

DISPOSITION

The judgment is vacated only as to defendants sentence, and the case is remanded for resentencing. The judgment is otherwise affirmed. We express no opinion whether compliance with Cunningham will require a change in the actual sentence imposed in this case.

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Siggins, J.

We concur:

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Parrilli, Acting P.J.

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Pollak, J.

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^[1] The court also imposed a consecutive indeterminate sentence of 25 years to life on the murder conviction, with a consecutive enhancement of 25 years to life for personal discharge of a firearm resulting in great bodily injury, because the two offenses were committed at different places against different victims. The sentence on the assault conviction was stayed.