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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. William Robert STANKEWITZ, Defendant and Appellant.

No. F044592.

Decided: February 09, 2005

A.M. Weisman, Diamond Bar, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Michelle L. West, Deputy Attorneys General, for Plaintiff and Respondent.


In this case of gross vehicular manslaughter while intoxicated and related charges, defendant contends that his constitutional right to due process of law was violated when police allowed the car he allegedly drove to be moved to commercial towing and salvage yards, and significantly altered, before he inspected it.   While the failure to maintain the car in its immediate post-accident condition might have been shoddy investigatory procedure, we conclude that it did not rise to the level of a constitutional violation.

We also reject defendant's arguments that (a) the trial court erred in excluding certain evidence he offered to impeach a prosecution witness;  (b) the evidence of his gross negligence was insufficient to support the charge of gross vehicular manslaughter while intoxicated;  (c) the court abused its discretion in sentencing him under the three strikes law and imposing consecutive sentences;  (d) the court committed error under Blakely v. Washington (2004) 542 U.S. 2531, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely ) in imposing an upper term sentence and consecutive sentences;  and (e) his aggregate sentence was cruel or unusual.   We publish our discussion of the Blakely issues.

The People concede that the court miscalculated fees and penalties it imposed on defendant.   We order these corrected and affirm the judgment in all other respects.


William Stankewitz (defendant) and his aunt, Wilma Lewis, spent from the morning of June 21, 1999 to the morning of June 22, 1999, driving Lewis's Mercury Cougar in and around the Big Sandy Rancheria, where defendant and Lewis both lived, and in a larger area in Madera and Fresno counties.   At around 9:00 or 10:00 o'clock on the morning of June 21, defendant and Lewis began drinking beer as they drove.   Defendant's girlfriend and an elderly neighbor rode with them part of the day and also drank beer.   The four of them purchased and consumed at least 38 cans of beer.   Late that night, defendant and Lewis arrived, both intoxicated, at a relative's house in Fresno.   They continued drinking there, and headed back toward the Rancheria in Auberry in the early morning.

On the way, at about 7:00 o'clock in the morning, they were involved in a fatal accident.   In a rural area, at an intersection controlled by a stop sign, the Cougar hit another car broadside, killing the driver.   Lewis was thrown from the car.   As she lay unconscious on the ground, defendant knocked on the door of a nearby house and asked to use the phone.   The resident called 911 and spoke to the operator and then handed the phone to defendant, who used it to call a friend.   Defendant tried to hide in the yard of the house, and held his finger to his lips to warn the resident not to tell the police of his location.   When officers found him, he told them he knew nothing about the accident and did not know the injured woman.   He said he was in the area looking for farm work and had spent the night at the intersection sleeping in a van, which had since left.   The police arrested him after finding documents bearing his name in the car.   His blood alcohol level was .16 percent, double the threshold amount for driving under the influence.  (Veh.Code, § 23152.)

Lewis was injured seriously in the accident.   She suffered fractures of her left arm, left ankle, and eighth right rib, a dislocated left knee, and other wounds, including lacerations of her scalp and left leg.   At the hospital, Lewis told officers that defendant was the driver.

Defendant appeared uninjured at the scene of the accident.   Several days later, while in jail, he reported pain extending from the middle of his lower back to his right ankle and in one shoulder, which he attributed to the accident.   He was treated with Motrin.

After the accident, the Cougar was moved to Ron's Towing, a commercial towing yard in Madera.   There, it was kept inside a building until July 2, 1999, 10 days after the accident.   On July 2, the police informed Ron's Towing that the evidence hold was released, and the car was moved outdoors.   Ron's Towing covered the car's open windows with plywood to keep its guard dogs from entering, but otherwise the car was exposed to the elements.   An employee of Ron's Towing testified at the first trial that the front bumper, which had come off in the accident, was placed inside the car.

As far as the record discloses, the car was not examined by anyone after the day of the accident until early August 1999, when an investigator from the District Attorney's office and two members of the California Highway Patrol's Multi-disciplinary Accident Investigation Team (MAIT) examined and photographed it.   The goal of the MAIT investigation was to determine, based on the damage to the car and the injuries to defendant and Lewis, which of them was the driver.

At about the same time, an investigator with the Public Defender's office also viewed the car.   He saw debris inside.

After the MAIT officers' inspection, CHP informed Ron's Towing that it no longer needed the car and it was “released from evidence.”   Ron's Towing sold the car to Romero's Towing, a dismantler in Los Banos, where it was moved on August 6 or August 7, 1999.

Defendant retained counsel to replace the Public Defender on August 26, 1999.   The Public Defender's office incorrectly told defendant's new counsel that the car had been destroyed and was not available for inspection.   Nevertheless, defendant's new investigator found the car at Romero's Towing in September 1999.   It was outdoors, stacked atop another wrecked car.

Defendant's counsel arranged with the District Attorney's office to return with his investigator to Romero's Towing for an inspection. The inspection did not take place until January 4, 2000.   By that time, the car had been moved to another place on the lot and altered in several ways since defendant's investigator first saw it in September:  The entire front end had been cut off with a welding torch;  the wheels were removed;  the seat belts had been cut off;  and the seat backs were damaged and in different positions than before.

Defendant was tried three times for his role in the accident.   In the first trial, a mistrial was declared when the jury was unable to reach a verdict.   After defendant was convicted in the second trial, the court granted his motion for a new trial based on ineffective assistance of counsel.

In the third prosecution, defendant was charged with the following offenses:  (1) gross vehicular manslaughter (of the other car's driver) while intoxicated (Pen.Code, § 191.5, subd. (a) 1 );  (2) vehicular manslaughter (of the other car's driver) while intoxicated (§ 192, subd. (c)(3));  (3) driving under the influence of alcohol while concurrently committing another offense (i.e., running a stop sign) and causing bodily injury (to Lewis) (Veh.Code, § 23153, subd. (a));  (4) driving with a blood alcohol level of .08 percent or more while concurrently committing another offense and causing bodily injury (to Lewis) (Veh.Code, § 23153, subd. (b));  and (5) running a stop sign (Veh.Code, § 22450).   The information also alleged three prior serious or violent felonies (all robberies) pursuant to the three strikes law.

At trial, defendant's defense was that Lewis was the driver and he was not.   Both sides presented expert testimony on this issue.   The two MAIT officers who examined the car testified that, based on the exterior damage to the car, they determined the direction in which the occupants moved inside the car during the crash.   From that information, plus the damage to the interior of the car, the nature of the injuries to defendant and Lewis, and the fact that Lewis was ejected through the passenger window, they determined that defendant was sitting in the driver's seat and Lewis in the passenger seat at the time of the crash.   Defendant's expert, Garrith Perrine, testified that he evaluated essentially the same information and reached the opposite conclusion.   A third MAIT officer gave testimony to rebut Perrine's.

The jury found defendant guilty of gross vehicular manslaughter of the other driver while intoxicated (count 1);  driving while under the influence and injuring Lewis (count 3);  and driving with a blood alcohol level of .08 or more and injuring Lewis (count 4).

The court found the prior conviction allegations true and denied defendant's request to dismiss prior strike convictions.   On count 1, it selected the upper term of 10 years as set forth in section 191.5, subd. (c), and increased it to 30 years to life pursuant to the three strikes law. (§ 667, subd. (e)(2)(A)(i).)   On count four, the court imposed a consecutive three-strikes term of 25 years to life. (§ 667, subd. (e)(2)(A)(ii).)   It stayed the sentence on count 3 pursuant to section 654.



V. Sentencing issues under Blakely v. Washington

On June 24, 2004, after defendant filed his opening brief in this appeal, the United States Supreme Court decided Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.   Defendant filed a supplemental brief addressing Blakely before the People's brief was due.   He contends that the court committed error under Blakely both by selecting the upper term as the basis for the sentence on count one and by imposing consecutive sentences.   The People filed no supplemental brief addressing Blakely.   In accordance with this Court's Standing Order 04-1, as amended August 11, 2004, we deem defendant's arguments opposed.

 In Blakely, the Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendant's Sixth Amendment right to a jury trial.  (Blakely, supra, 542 U.S. at pp. 298, 304, 124 S.Ct. at pp. 2534, 2538.)   Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so.  (Id. at p. 2535.)   The judge found that the crime was committed with “ ‘deliberate cruelty’ ” and imposed a sentence of 90 months.  (Id. at p. 2534.)   The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.  “ ‘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.’ ”  (Blakely, supra, 542 U.S. at p. 301, 124 S.Ct. at p. 2536.)   It did not matter that the offense was a Class B felony and that Class B felonies carried a maximum sentence of 10 years, because the state's sentencing law did not allow the sentence to exceed 53 months without judicial factfinding.  “Our precedents make clear ․ that the ‘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.”  (Id. at p. 2537.)   The Court continued:

“In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.   When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.”  (Blakely, supra, 542 U.S. at p. 303, 124 S.Ct. at p. 2537.)

A. Upper term

 In the present case, defendant argues that the trial court committed Blakely error by imposing a sentence based on the upper term for gross vehicular manslaughter while intoxicated.   This argument is based on the rule that under California's determinate sentencing law, the court is required to impose the middle term unless it makes certain findings justifying the upper or lower term.   This rule is set forth in a statute, section 1170, subdivision (b), and a Rule of Court, rule 4.420.   Section 1170, subdivision (b), provides:  “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.”  Rule 4.420 provides:

“(a) When a sentence of imprisonment is imposed, ․ the sentencing judge shall select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170(b) and these rules.   The middle term shall be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.

“(b) Circumstances in aggravation and mitigation shall be established by a preponderance of the evidence.   Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation․”

Defendant argues that by finding aggravating factors pursuant to this scheme, and selecting the upper term based on them, the court imposed a sentence longer than the statutory maximum as defined in Blakely and thereby violated his Sixth Amendment rights.

The question of whether Blakely applies to the imposition of upper terms is the most significant post-Blakely issue that has emerged in California.   It is currently pending before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677, and People v. Black, review granted July 28, 2004, S126182.   We need not decide the issue in this case, however, because imposing the upper term here was consistent with Blakely even assuming Blakely applies.

 Blakely describes three types of facts that a trial judge can properly use to impose an aggravated sentence under a sentencing system in which an aggravated sentence must be supported by facts:  (a) “ ‘the fact of a prior conviction’ ” (Blakely, supra, 542 U.S. at p. 301, 124 S.Ct. at p. 2536);  (b) “facts reflected in the jury verdict” (id. at p. 2537, italics omitted);  and (c) facts “admitted by the defendant” (ibid, italics omitted).   The first type is at issue here.

At the sentencing hearing, the court stated the factors it relied on in selecting the upper term as the basis of the tripled three-strikes sentence it imposed for count one:

“Regarding Count 1, the range there is 12, 18, or 30 years to life.   I think the aggravated term of 30 years to life is appropriate here in that you previously engaged in violent conduct, which is evidenced by your prior record.   To me, the robberies were violent.  [Notwithstanding] the fact no one was injured.   They were robberies with firearms.   Your prior convictions in my mind are numerous;  they're very serious.   You served prior prison terms.   Your prior performance on probation or parole [was] unsatisfactory.”

In so stating, the court relied on three of the five aggravating factors listed in California Rules of Court, rule 4.421:  “[t]he defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness” (rule 4.421(b)(2));  “[t]he defendant has served a prior prison term” (rule 4.421(b)(3));  and “[t]he defendant's prior performance on probation or parole was unsatisfactory” (rule 4.421(b)(5)).

We acknowledge that none of these is, precisely speaking, “ ‘the fact of a prior conviction․’ ” (Blakely, supra, 542 U.S. at p. 301, 124 S.Ct. at p. 2536.)   All of them presuppose one or more prior convictions, however.   When the court relied on them, it was necessarily also relying on the fact of defendant's prior convictions.   This means that the upper term was supported by a factor that, under Blakely, need not be found by a jury beyond a reasonable doubt.

The question that remains is whether it matters that the court also relied on circumstances related to but nevertheless beyond the mere fact of defendant's prior convictions:  their numerousness, the prison terms, and so on.   Was it improper under Blakely to rely on those circumstances without submitting them to a jury even though a proper factor (the priors themselves) was also present?

Several propositions relevant to this question have emerged in the California post-Blakely case law.   It has been held that if one aggravating factor (such as a prior conviction) was properly relied on, it is irrelevant that others were also relied on, because, under California law, one aggravating factor suffices to authorize the upper term.  (People v. Harless (2004) 125 Cal.App.4th 70, 99, 22 Cal.Rptr.3d 625;  see also People v. Earley (2004) 122 Cal.App.4th 542, 550, 18 Cal.Rptr.3d 694.)   It has also been held that at least some of the so-called recidivist factors are similar enough to the fact of a prior conviction that they need not be found by a jury.  (People v. Vu (2004) 124 Cal.App.4th 1060, 1068-1069, 21 Cal.Rptr.3d 844 [numerousness of prior convictions and being on probation at time of current offense need not be found by jury].)   On the other hand, it has been held that some recidivist factors are not similar enough to the fact of a prior conviction and do need to be found by a jury.   If they were found by the judge, and the judge's reliance on them was not harmless, the sentence must be vacated and remanded.  (Id. at pp. 1068-1069, 1070, 21 Cal.Rptr.3d 844 [poor performance on probation may not be found by judge;  judge's reliance on it and other improper factors not found harmless, so sentence vacated and remanded];  People v. Emerson (2004) 124 Cal.App.4th 171, 178, 21 Cal.Rptr.3d 134 [if judge's reliance on prior prison term and poor performance on parole was error, it was harmless in light of defendant's many prior convictions].)

 We agree with the view that, where the court imposed the upper term based on a fact properly found under Blakely, the sentence is not vitiated by the court's consideration of other facts as well.   The heart of the analysis of a sentence under Blakely is the determination of the maximum sentence.   The maximum sentence within the meaning of Blakely is the greatest sentence the judge can impose based on the facts reflected in the jury verdict or admitted by the defendant, plus the fact of the defendant's prior convictions, if any.   Here, the greatest sentence the judge could impose for count one was 30 years to life, equal to the 10-year upper term for section 191.5, multiplied by three, to life.   The upper term was authorized because defendant had prior convictions.  (People v. Osband (1996) 13 Cal.4th 622, 728, 55 Cal.Rptr.2d 26, 919 P.2d 640 [a single aggravating factor can justify the upper term];  People v. Berry (1981) 117 Cal.App.3d 184, 191, 172 Cal.Rptr. 756 [defendant's two priors were not “numerous” within meaning of rule of court, but rule is nonexclusive, so the court could still view priors themselves as an aggravating factor].)   Because the upper-term-based maximum was authorized by the finding of the prior convictions, it was not improper for the trial judge to make and rely on additional findings (numerousness, seriousness, and violence of priors;  prison terms;  performance on probation and parole) before actually imposing that maximum.   In other words, once the length of the maximum sentence is calculated using facts found properly under Blakely, there is no jury requirement for additional findings that the court relies on in deciding whether to impose that sentence or a lesser one.

A hypothetical example given by the Court in Blakely supports this conclusion:

“In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail.   In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence-and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.”  (Blakely, supra, 542 U.S. at pp. 308-309, 124 S.Ct. at p. 2540.)

Assuming Blakely applies to the imposition of upper terms, a driver who commits gross vehicular manslaughter while intoxicated is entitled to no more than the middle term if no aggravating circumstances exist.   But he is not entitled to the middle term if he commits the same crime while having a record of prior convictions, and as Blakely specifies, the Sixth Amendment does not require the existence of the prior convictions to be found by a jury.   For these reasons, we conclude that the imposition for count one of a sentence based on the upper term did not constitute error under Blakely, assuming Blakely applies to upper-term sentences.

 Even if we thought the court's reliance on facts other than defendant's prior convictions were erroneous under Blakely, in this case we would conclude that the error was harmless.   First, we agree that a multiplicity of prior convictions is so closely related to the prior convictions themselves that it is within the exceptions for priors contained within Blakely and Apprendi.  (People v. Vu, supra, 124 Cal.App.4th at pp. 1068-1069, 21 Cal.Rptr.3d 844.)   We also conclude that prior prison terms are within that exception.   This leaves the court's findings that the prior offenses were violent or serious and that defendant's performance on probation and parole was unsatisfactory.   Assuming Blakely prohibited the court from considering these, we nevertheless conclude that its consideration of them was harmless.  “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.”  (People v. Price (1991) 1 Cal.4th 324, 492, 3 Cal.Rptr.2d 106, 821 P.2d 610.)   It is not reasonably probable that the court would have chosen the middle or lower term if it had known it should consider only defendant's prior convictions, their numerousness, and his prior prison terms.   It is obvious that the court thought those were important aggravating factors.   The mitigating factor proposed by defendant was his personal and family history.   The court stated that it considered this, but it is evident that it did not regard this factor as a strong mitigating circumstance.   We are therefore confident that the court would have imposed the upper term even if the findings that defendant's prior offenses were violent or serious and that his performance on probation and parole was unsatisfactory had been excluded from consideration.

 We note that the reasonably probable standard of harmless-error review set forth above, and not the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, is the appropriate one here because the question is only whether the trial court would have reached the same result absent the assertedly improper findings.   The issue is not whether those findings would still have been made had the Sixth Amendment procedures-i.e., submission to a jury for determination beyond a reasonable doubt-been used.  (See People v. Vu, supra, 124 Cal.App.4th at pp. 1069-1070, 21 Cal.Rptr.3d 844.)

B. Consecutive sentences

 Defendant argues that the court committed Blakely error in imposing consecutive sentences.   The application of Blakely to consecutive sentencing, another of the most frequently litigated post-Blakely issues, is also pending before the California Supreme Court in People v. Black, supra, review granted July 28, 2004, S126182.   But, again, we need not decide that issue in this case.   Here the imposition of consecutive sentences was proper even if Blakely applies.   As explained above, the consecutive sentences were supported by the fact that the two crimes had different victims.   The two different victims were identified in the information.   The fact that each crime had a separate victim was established by the evidence, was undisputed, and was implicit in the verdicts.   Because facts reflected in a jury verdict are a proper basis for imposition of an aggravated sentence under Blakely, there was no error.



The fine-plus-penalties assessment of $1,228.50 is vacated.   The court is directed to impose a $1,053 assessment in its place and issue a corrected abstract of judgment reflecting the corrected amount and corrected statutory citations as set forth in the preceding section.   The judgment is affirmed in all other respects.


1.   Subsequent statutory references are to the Penal Code unless indicated otherwise.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.


WE CONCUR:  HARRIS, Acting P.J., and LEVY, J.

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