P. v. Sandoval

Filed 3/28/05 P. v. Sandoval CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
GEORGE SANDOVAL,
Defendant and Appellant.
B173406
(Los Angeles County
Super. Ct. No. KA050723)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Thomas C. Falls, Judge. Affirmed in part, reversed in part and remanded.
Mary Woodward Wells, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff
and Respondent.

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2
George Sandoval appeals from judgment entered following resentencing in
accordance with this court’s non-published opinion filed May 21, 2003. Appellant
contends he was denied his federal constitutional rights to proof beyond a
reasonable doubt and a jury trial because the aggravating non-recidivist factors
used to increase his sentence were not found true beyond a reasonable doubt by a
jury. For reasons explained in the opinion, we remand the cause for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
Appellant had been convicted following a jury trial of grand theft vehicle
(Pen. Code, § 487, subd. (d); counts 1, 2); forgery (Pen. Code, § 470, subd. (d);
count 3); grand theft of personal property (Pen. Code, § 487, subd. (a); counts 4,
6), and writing a non-sufficient fund check (Pen. Code, § 476a subd. (a); counts 5,
7) with a true finding as to each count on the allegation that he took property
exceeding $150,000 in value (Pen. Code, § 12022.6, subd. (a)(2)).1
At the resentencing hearing on December 12, 2003, the court recomputed the
restitution amounts, struck the imposition of the excess value enhancements on
counts 2 through 7 and exercised its discretion to impose an excess value
enhancement on the total sentence. The trial court stated it was adopting the
previous findings it had made as well as the findings of this court.
1 This court reversed the trial court orders imposing an excess value enhancement
pursuant to Penal Code section 12022.6, subdivision (a)(2) on count 1 and staying the
remaining six excess value enhancements, imposing consecutive sentences on counts 3
and 7 and imposing $304,976 as direct restitution. We remanded the matter to the trial
court with directions to (1) exercise its discretion whether to impose a single excess value
enhancement on appellant’s sentence as a whole rather than on any particular count; (2)
strike the remaining six excess value findings; (3) stay appellant’s sentences on counts 3
and 7; and (4) hold a new hearing to recalculate restitution amounts due victims
Lockhart, Chan and Rademacher. In all other respects, the judgment was affirmed and on
July 25, 2003, the remittitur issued.

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On June 3, 2004, the trial court ordered nunc pro tunc a corrected prison
sentence of seven years, eight months, in compliance with this court’s directive to
stay sentencing on counts 3 and 7.2
DISCUSSION
Appellant contends in imposing a total prison term of seven years, eight
months, the resulting sentence was based on factual findings that violated
appellant’s Fifth, Sixth and Fourteenth Amendment rights under the case of
Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] because the findings
were neither found true by a jury nor held to the standard of proof beyond a
reasonable doubt.
At the time of the first sentencing the court stated it had read and considered
the probation officer’s report and the prosecution’s submitted statement in
aggravation, been apprised of the civil judgment against appellant by Mr. Chan, the
arguments of counsel and determined appellant was not suitable for probation. The
court observed, “The probation department, in fact, recommends high-based state
prison term despite the defendant’s somewhat minimal criminal [history.] The
court notes that, after listening to the testimony of the defendant and all of the
witnesses, that the defendant was engaged in a very complex, sophisticated con
game, that he conned multiple victims. [¶] It would appear from the testimony
there were other victims dealing with other cars in another state. But that’s not
before the court at this time. [¶] Probation is denied. Defendant is sentenced as
follows: He is sentenced in count 1 to the upper term, three years in state prison.
2 The sentence was composed of the upper term of three years for count 1,
consecutive eight month (one-third the mid-term) terms for counts 2, 4, 5, and 6 and two
years pursuant to Penal Code section 12022.6, subdivision (a)(2) as to the entire case.
Sentences as to counts 3 and 7 were imposed and stayed.

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The court does find California Rules of Court[, rule] 421(a)(3) that victim Lockhart
in particular and Mr. Chan, somewhat to a lesser extent, but also was definitely,
and they were especially vulnerable victims. They were unsophisticated. [¶] They
were dealing with someone clearly head and shoulders above them with regard to
engaging in this con that he was involved in. The court also finds California Rules
of Court, rule 421(a)(8) that this crime was clearly premeditated. The planning,
sophistication, and professionalism with which it was carried out without a doubt
indicates that it was premeditated. And the ongoing nature of and the similarities
in the cons show that this was an ongoing practice of the defendant. [¶] The court
also feels that under rule 421(a)(9), it’s not permitted to consider the monetary loss
that was actually proven in court with regard to the actual cons that took place. [¶]
However, I think that Ms. Lockhart’s testimony is compelling that she was forced
into bankruptcy based on the actions of the defendant. In fact, the reason she was
selling her car was to avoid that very thing. And that should also be a factor in
aggravation although it should be clear that the court is primarily relying on rules
421 (a)(3) and 421(a)(8).” The court felt consecutive sentences were appropriate
because the crimes and their objectives were predominantly independent of each
other although intertwined in a con scheme. The victims did not know each other,
the acts and crimes occurred at different times and separate places. There was no
indication that this was a single period of aberrant behavior.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi ), the United
States Supreme Court held: “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.” In Blakely v.
Washington, supra, 124 S.Ct. 2531, 2537 (Blakely ), the Supreme Court held 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

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admitted by the defendant. . . . 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.” (Italics
omitted.) It appears that the holding applies to all cases not yet final when Blakely
was decided in June 2004. (See Schriro v. Summerlin (2004) 542 U.S. ___ [124
S.Ct. 2519].)
Appellant argues that Blakely applies to the California determinate
sentencing law. We agree. Under Penal Code section 1170, subdivision (b),
“[w]hen 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.” Circumstances
in aggravation cannot include a fact on which an enhancement is based or a fact
which is an element of the underlying offense. (Cal. Rules of Court, rule 4.420(c)
and (d).) Like the “standard range” in the Washington sentencing scheme
considered in Blakely, the middle term under California law is the maximum
sentence the court can impose “solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” (Blakely, supra, 124 S.Ct. 2531, 2537.)
Here, the court imposed the upper term based on two factors. The court
found that the victims were especially vulnerable and that the crimes were
premeditated. Appellant was entitled to have a jury determine these facts used to
impose the upper term, and the resulting sentence here is an invalid sentence.
While appellant claims his consecutive sentences also violate Blakely, neither
Blakely nor Apprendi purport to create a right to a jury trial determination on
whether to impose consecutive sentences.

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DISPOSITION
The cause is remanded for resentencing in accordance with the views
expressed in this opinion and in all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HASTINGS, J.
We concur:
EPSTEIN, P.J.
CURRY, J.

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