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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Keyon GEORGE, Defendant and Appellant.

No. D042980.

Decided: September 15, 2004

Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Tami Falkenstein Hennick, Deputy Attorney General, for Plaintiff and Respondent.

This case presents the issue of whether the trial court's imposition of a discretionary upper term sentence based on certain aggravating facts found by the court violates a criminal defendant's right to a jury trial in accordance with United States Supreme Court's recent decision in Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely ).   In the published part of this opinion, we conclude that Blakely precludes a trial court's determination of facts not found by the jury or admitted by the defendant (other than those arising out of a prior conviction) as a basis for imposing an upper term sentence.   In the unpublished portion of the opinion, we reject the defendant's arguments that the trial court erred in (1) denying his request to bifurcate trial on the enhancement allegations that he acted for the benefit of a criminal street gang in committing the underlying offense, (2) admitting hearsay and expert evidence relating to the enhancement, and (3) failing to give a limiting instruction regarding the jury's use of such evidence.   However, we agree with the defendant's contention that the evidence was insufficient to support his conviction of a second robbery count.   We reverse the judgment as to the second robbery count and the sentence and remand the matter for resentencing.


Kenyon George and three other young men (Jerry Grinston, Darrow Haygood and Anthony Gardner) robbed Jesse Savage at gunpoint while Jesse was in his bedroom at his parents' home, where Gardner had previously lived for a period of time.   The men took $800 in cash, marijuana, CDs, DVDs, a cell phone, a hat, and Jesse's identification.   As the men were leaving, Grinston and Gardner confronted Jesse's older brother, Paul, as he emerged from the bathroom;  Grinston “jammed” a gun against Paul's chest, telling Paul to get upstairs and saying “I'm Piru. I'll smoke you.”   Grinston ordered Paul to lie down in Jesse's bedroom.   After Paul complied, all four assailants left the house and ran off in different directions;  George carried many of the stolen items with him.

Jesse called 911 and La Mesa Police Officer Malcolm Chambers was in the area on his police motorcycle when he received a dispatch call about the incident.   Officer Chambers saw George in a “dead run” and, stepping out from behind a vehicle with his gun drawn, stopped George, who was wearing clothing in colors associated with the Eastside Piru gang and a hat later identified as Jesse's.   In a curbside lineup, Jesse identified George as one of the assailants;  he also identified the revolver George had used in the incident, which officers found discarded near the Savages' home.

Officer Chambers arrested George, who had Jesse's cell phone and identification and $820 in cash with him.   As the officer was putting George into the police car, George sang the word “Piru.” Police also arrested Gardner and the district attorney filed an information charging both men with two counts of residential robbery in concert and alleging that they personally used a firearm and acted for the benefit of a criminal street gang as to each count.   The information also alleged that George had a serious felony prior and a strike prior.   Police subsequently arrested Haygood and Grinston as well.   At the time of his arrest, Grinston told the officers he was a member of the Eastside Piru gang

At George's trial, the prosecution introduced evidence of the foregoing, as well as testimony of gang expert Detective John Davis that, based on the circumstances, George committed the robbery to promote, further or assist the Eastside Piru gang.   In his defense, George introduced evidence that he was not a gang member, but had participated in the incident because he thought Grinston, who he knew was a Piru gang member, would kill him, members of his family or his girlfriend if he refused to do so.   He also testified that he was highly intoxicated at the time and that he was wearing pants and shoes he had borrowed from Grinston, with whom he was temporarily living, because his clothes were dirty.

The jury convicted George of both counts and made a true finding that George had acted for the benefit of a criminal street gang.   It also found that George was not personally armed with a firearm.   In a bifurcated proceeding, the trial court found true the allegation that George suffered a serious felony strike prior and thereafter sentenced George to prison for 33 years, consisting of (1) an upper term of 18 years plus 10 years for the gang enhancement on count 1, (2) a concurrent term of 18 years plus a 10 year gang enhancement on count 2, and (3) a 5 year enhancement for George's serious felony prior.




Imposition of Upper Term Sentence

During the pendency of this appeal, the United States Supreme Court issued its decision in Blakely, which held that a state trial court's imposition of a sentence that exceeded the statutory maximum of the standard range for the charged offense on the basis of additional factual findings made by the court violated the defendant's Sixth Amendment right to trial by jury.   Based on the trial court's imposition of upper term sentence on count one in this case, we requested further briefing from the parties on the effect of Blakely on this case.

In his brief, George contends that pursuant to the analysis of Blakely, the court's finding of facts to justify its imposition of upper term sentences violated his right to a jury trial.   The Attorney General responds that George has waived the issue by failing to raise a challenge to the sentences in the proceedings below, that there is no constitutional violation pursuant to the analysis of Blakely and that, even if a Blakely error existed, it was harmless beyond a reasonable doubt.

1. Waiver

 In People v. Scott (1994) 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040 (Scott ), the California Supreme Court held that a defendant's failure to challenge in the trial court the imposition of an aggravated sentence based on erroneous or flawed information waived that issue for purposes of appeal.   The Attorney General argues that the holding of Scott is equally applicable here.   However, the Scott court reasoned that its waiver rule was necessary to facilitate the prompt detection and correction of error in the trial court, thus reducing the number of appellate claims and preserving judicial resources (id. at pp. 351, 353, 36 Cal.Rptr.2d 627, 885 P.2d 1040), a pragmatic rationale that does not support the application of the waiver rule here.   Prior to Blakely, California courts and numerous federal courts consistently held that there was no constitutional right to a jury trial in connection with a court's imposition of consecutive sentences.  (People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231, 132 Cal.Rptr.2d 744;  U.S. v. Harrison (8th Cir.2003) 340 F.3d 497, 500;  U.S. v. Lafayette (D.C.Cir.2003) 337 F.3d 1043, 1049-1050;  U.S. v. Hernandez (7th Cir.2003) 330 F.3d 964, 982;  U.S. v. Davis (11th Cir.2003) 329 F.3d 1250, 1254;  U.S. v. Chorin (3rd Cir.2003) 322 F.3d 274, 278-279;  U.S. v. Lott (10th Cir.2002) 310 F.3d 1231, 1242-1243;  U.S. v. White (2nd Cir.2001) 240 F.3d 127, 136.)   No published case in California held that a different rule applied in connection with the imposition of an upper term sentence.  (See People v. Sykes (2004) 120 Cal.App.4th 1331, 1344-1345, 16 Cal.Rptr.3d 317.)   In light of this state of the law, George's assertion of a challenge to the imposition of an upper term sentence would not have achieved the purpose of prompt detection and correction of error in the trial court.   Further, because Blakely was decided after George's sentencing, George cannot be said to have knowingly and intelligently waived his right to a jury trial.  (See Blakely, supra, 542 U.S. at p. 310, 124 S.Ct. at p. 2541 [noting that, “if appropriate waivers are procured,” a state is free to utilize judicial factfinding in its sentencing scheme].)   For these reasons, we find the waiver rule of Scott inapplicable.

2. Application of Blakely to an Upper Term Determination

 In Blakely, the United States Supreme Court held 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.’ ”  (Blakely, supra, 542 U.S. at p. 301, 124 S.Ct. at p. 2536.)   The question of whether Blakely precludes a trial court from making findings on aggravating facts in support of an upper term sentence is currently under review by the California Supreme Court.  (People v. Towne, review granted July 14, 2004, S125677;  People v. Black, review granted July 28, 2004, S126182.)   Pending resolution of the issue by the high court, we must undertake a determination of whether Blakely applies under the circumstances presented.

Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation.  (Pen.Code, § 1170, subd. (b);  Cal. Rules of Court, rule 4.420(c), (d).)  The Attorney General argues that the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as the imposition of a penalty beyond the standard range and thus does not implicate Blakely.   The attempted distinction, however, is one without a difference.   Although an upper term is a “statutory maximum” penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the “maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” which is the relevant standard for purposes of applying Blakely.  (Blakely, supra, 542 U.S. at p. 303, 124 S.Ct. at p. 2537, italics in original;  see Apprendi v. New Jersey (2000) 530 U.S. 466, 491-497, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi ) [state hate crime statute authorizing the imposition of an enhanced sentence based on a judge's finding of certain facts by a preponderance of the evidence violated the due process clause];  Ring v. Arizona (2002) 536 U.S. 584, 592-593, 122 S.Ct. 2428, 153 L.Ed.2d 556.)

As explained in Blakely, when the judge's authority to impose a higher sentence depends on the finding of one or more additional facts, “it remains the case that the jury's verdict alone does not authorize the sentence,” as required to comply with constitutional principles.  (Blakely, supra, 542 U.S. at p. 305, 124 S.Ct. at pp. 2538-2539.)   The same is true here.   Because the maximum penalty the court can impose under California law without making additional factual findings is the middle term, Blakely applies.   Thus, the question becomes whether the trial court could properly rely on any of the cited factors as the basis for its decision to impose the upper term without violating Blakely.

Here, the trial court relied on five aggravating factors as the basis for its decision to impose the upper term, to wit, that (1) the crime was serious and involved threats of great bodily injury to the victims;  (2) the crime involved planning, sophistication and professionalism;  (3) the current offense was more serious than the offense underlying George's prior conviction, which was itself serious;  (4) at the time George committed the current offenses, he was on felony probation;  and (5) George's prior performance on probation was poor.   In accordance with Blakely, the Constitution requires a jury trial on any fact that “the law makes essential to the punishment,” other than the fact of a defendant's prior conviction.  (Blakely, supra, 542 U.S. at pp. 301-302 and fn. 5, 124 S.Ct. at p. 2537 and fn. 5, also p. 2540 [any fact that “pertain[s] to whether the defendant has a legal right to a lesser sentence”].)

Applying this standard here, we conclude that the trial court was constitutionally entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for imposing an upper term sentence.   Because this fact arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction, we conclude that constitutional considerations do not require that matter to be tried to a jury and found beyond a reasonable doubt.   As with a prior conviction, the fact of the defendant's status as a probationer arises out of a prior conviction in which a trier of fact found (or the defendant admitted) the defendant's guilt as to the prior offense.  (Apprendi, supra, 530 U.S. at p. 488, 120 S.Ct. 2348;  see also Jones v. United States (1999) 526 U.S. 227, 233, 119 S.Ct. 1215, 143 L.Ed.2d 311.)   As with a prior conviction, a probationer's status can be established by a review of the court records relating to the prior offense.   Further, like a prior conviction, the defendant's status as a probationer “does not [in any way] relate to the commission of the offense, but goes to the punishment only ․” (Almendarez-Torres v. U.S. (1998) 523 U.S. 224, 244, 118 S.Ct. 1219, 140 L.Ed.2d 350, italics in original.)   Thus, in accordance with the analysis of Blakely, the trial court was not required to afford George the right to a jury trial before relying on his status as a probationer at the time of the current offense as an aggravating factor supporting the imposition of the upper term.

 The Attorney General suggests that the propriety of this single factor as a basis for imposing an upper term sentence is sufficient to withstand George's constitutional challenge to the sentence.   There is no question that under California law, a court may rely on a single aggravating factor as a basis for imposing an upper term sentence, so long as that factor outweighs any circumstances in mitigation.  (Cal. Rules of Court, rule 4.420(b);  People v. Osband (1996) 13 Cal.4th 622, 728, 55 Cal.Rptr.2d 26, 919 P.2d 640, citing People v. Castellano (1983) 140 Cal.App.3d 608, 614-615, 189 Cal.Rptr. 692.)   Further, the probation officer and the prosecutor contended here that there were no mitigating circumstances, a contention with which the court implicitly agreed.   However, assuming without deciding, that resentencing is only required if it “is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error” (see People v. Osband, supra, 13 Cal.4th at p. 728, 55 Cal.Rptr.2d 26, 919 P.2d 640;  compare People v. Collins (2001) 26 Cal.4th 297, 311-313, 109 Cal.Rptr.2d 836, 27 P.3d 726 [recognizing that the denial of a right to a jury trial constitutes a “structural defect” that results in a miscarriage of justice];  People v. Ernst (1994) 8 Cal.4th 441, 448-449, 34 Cal.Rptr.2d 238, 881 P.2d 298 [same] ), we cannot conclude that the elimination of four of the cited factors would not have made a difference in the court's sentencing decision here.


The judgment is reversed as to the second robbery count and as to the sentence on the first robbery count, but is otherwise affirmed.   The matter is remanded for resentencing.


FOOTNOTE.   See footnote 1, ante.



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