P. v. Hughes

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Filed 6/21/07 P. v. Hughes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
THE PEOPLE,
Plaintiff and Respondent,
v.
RANDY LEE HUGHES,
Defendant and Appellant.
A104380
(Sonoma County
Super. Ct. No. SCR31221)
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 California’s criminal sentencing scheme.
As explained below, we vacate the sentence and remand to the trial court for
resentencing.
BACKGROUND
On December 14, 2005, this court issued its opinion affirming the judgment in this
case. On February 20, 2007, the United States Supreme Court granted certiorari in the
matter, vacated the judgment, and remanded to this court for further consideration in light
of its decision in Cunningham, supra, 127 S.Ct. 856. Pursuant to this mandate, we
recalled the remittitur and invited both parties to file supplemental briefs.
We have reexamined our opinion in this case (People v. Hughes (Dec. 14, 2005,
A104380 [nonpub. opn.]), and incorporate it here by reference. Relying upon People v.
Black (2005) 35 Cal.4th 1238, we initially rejected defendant’s contention that imposition

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of the upper term and consecutive sentences on the basis of facts found by the court
deprived him of his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296.
We now reexamine that holding in light of Cunningham.
The Trial Court’s Sentencing Decision
The trial court explained its sentencing decision as follows: “As to Count One, the
Court imposes the aggravated term. The factors in aggravation being the fact that you
displayed viciousness, cruelty or callousness; your violent conduct indicates that you’re a
serious danger to society. You have numerous prior convictions. You were on a grant of
conditional sentence when the crimes were committed. Your performance on probation
generally has been unsatisfactory. You—in regards to serious felony counts, in counts—
offenses, in Counts One, Two and Four, you bound, confined and gagged the victim
within the meaning of Penal Code Section 1170.84. [¶] Therefore, the Court selects the
aggravated term and would impose also the aggravated term of all the other counts on
which you were found guilty.”
The court ordered the sentences to run consecutively based on its factual finding
that there was a different period of criminality as to each crime.
ANALYSIS
In Cunningham, California’s determinate sentencing law was held to violate a
defendant’s 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.) That is precisely what happened
here.
The People argue that no Cunningham error occurred because the court relied in
part on factors related to defendant’s prior convictions, as to which he had no right to a
jury trial under Almendarez-Torres v. United States (1998) 523 U.S. 224. Although three
of the five factors considered by the court were within the Almendarez-Torres exception,
we cannot conclude beyond a reasonable doubt that the court would have imposed the
same sentence had it not considered factors required under Cunningham to be found by a
jury; nor can we conclude that the jury would have found the charged non-recidivist

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factors true beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S.
18.) Because the court imposed the aggravated terms in part on the basis of such factors
found true by the court upon a preponderance of the evidence, we vacate the sentence
and remand to the trial court for resentencing.
Although defendant further contends he was wrongly denied a jury trial on factors
used to impose consecutive terms, the California Supreme Court foreclosed such a claim
in People v. Black, supra, 35 Cal.4th at page 1262: “[A] jury trial is not required on the
aggravating factors that justify imposition of consecutive sentences.” That holding was
not disturbed by Cunningham, which did not discuss the distinct issue of consecutive
sentences imposed for separate crimes. Black is binding on this court (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and dispositive of this aspect of
defendant’s challenge to his sentence.
DISPOSITION
The sentence is vacated. In all other respects, the judgment is affirmed for the
reasons stated in our prior opinion in this case. The matter is remanded to the trial court
for resentencing. We express no opinion whether compliance with Cunningham will
require a change in the actual sentence imposed in this case.
_________________________
Siggins, J.
We concur:
_________________________
Parrilli, Acting P.J.
_________________________
Pollak, J.

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