P. v. Leighton

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Filed 10/29/04 P. v. Leighton CA3
Opinion following rehearing
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or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
THIRD APPELLATE DISTRICT
(Trinity)
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THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL ALAN LEIGHTON,
Defendant and Appellant.
C044502
(Super. Ct. No. 03F033)
A jury convicted defendant Michael Alan Leighton of battery
with serious bodily injury (Pen. Code, § 243, subd. (d)),1 and
the trial court sustained an enhancement allegation for a prior
prison term (§ 667.5, subd. (b)). The court sentenced defendant
to state prison for an aggregate term of five years, consisting
of the upper term of fours years for the substantive offense and
an additional one year for the enhancement. The court’s
decision to impose the upper term was based on “the vicious and
1 Undesignated statutory references are to the Penal Code.

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unprovoked nature of the assault on the victim” in which
defendant “inflicted injuries causing the victim to lose
consciousness and requiring suturing of the victim’s face.”
On rehearing in this matter, counsel argues that
defendant’s sentence contravenes the recent decision of the
United States Supreme Court in Blakely v. Washington (2004)
542 U.S. ___ [159 L.Ed.2d 403] (hereafter Blakely).2 We agree.
A brief factual summary will suffice for an understanding of the
issue.
FACTUAL BACKGROUND
In the early morning hours of January 1, 2003, defendant
ran toward a young man in a gas station parking lot in
Weaverville, and they quickly became involved in a fight. There
was evidence suggesting defendant was the aggressor. This
incident resulted in a charge of misdemeanor battery (§ 242)
(count two) that was dismissed before trial on a motion by the
prosecutor. (See § 1385.) A short time after the fight, the
victim in the current case, his girlfriend, and another woman,
stopped at the gas station to get something to eat and some
cigarettes. The victim was intoxicated.
2 Counsel initially filed a Wende brief in this matter, and
defendant was permitted to file a pro. per. supplemental brief.
(See People v. Wende (1979) 25 Cal.3d 436.) This court issued
an opinion on July 19, 2004, but counsel subsequently petitioned
for rehearing raising Blakely, which was decided on June 24,
2004. Because Wende review is no longer warranted, this court
has stricken the original Wende brief and the supplemental pro.
per. brief filed by defendant.

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Defendant approached the victim as he was walking through
the parking lot and said someone had told him (defendant) that
the victim had called him “a piece of shit.”3 According to the
victim, defendant was very close and leaning toward him and he
responded by pushing defendant back and saying something to the
effect of, “Get out of my way, you fucking asshole.” However,
the victim’s girlfriend did not remember this and thought the
victim simply tried to continue walking past defendant. In any
case, defendant punched the victim in the face two or more
times, causing him to fall down and lose consciousness for a
short time.
The victim was taken to the hospital, where for
approximately an hour or more he received extensive suturing for
two lacerations to his face. A cautery pen was used to stop
bleeding from one of the lacerations. A registered nurse who
helped treat the victim opined that he also suffered a
concussion. Defendant later came to see the victim at home and
apologized.
DISCUSSION
Applying the Sixth Amendment to the United States
Constitution, the United States Supreme Court held in Apprendi
v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter
Apprendi) that other than the fact of a prior conviction, any
3 Apparently, the victim made derogatory remarks about defendant
to another person after they met at a campsite the previous
spring.

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fact that increases the penalty for a crime beyond the statutory
maximum must be tried to a jury and proved beyond a reasonable
doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this
purpose, the statutory maximum is the maximum sentence that a
court could impose based solely on facts reflected by a jury’s
verdict or admitted by the defendant. Thus, when a sentencing
court’s authority to impose an enhanced sentence depends upon
additional fact findings, there is a right to a jury trial and
proof beyond a reasonable doubt on the additional facts.
(Blakely, supra, 542 U.S. at p. ___ [159 L.Ed.2d at pp. 413-
414].)
Relying on Apprendi and Blakely, defendant claims the trial
court erred in imposing the upper term because the court relied
upon facts not submitted to the jury and proved beyond a
reasonable doubt, thus depriving him of the constitutional right
to a jury trial on facts legally essential to the sentence.
Under California’s determinate sentencing law, the
punishment for most offenses is expressed as a sentence range
consisting of an upper, middle, and lower term. The selection
of the term to be imposed is made by the trial court, applying
the sentencing rules of the Judicial Council. (§ 1170, subds.
(a)(3), (b).)
The court “shall order imposition of the middle term,
unless there are circumstances in aggravation or mitigation of
the crime.” (§ 1170, subd. (b).) The sentencing rules set
forth a nonexclusive list of circumstances which may be

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considered in aggravation and mitigation. (Cal. Rules of Court,
rules 4.408, 4.421, 4.423.) Notably, “[a] fact that is an
element of the crime shall not be used to impose the upper
term.” (Cal. Rules of Court, rule 4.420(d).)
Together, the Penal Code and the sentencing rules of the
Judicial Council create a sentencing scheme in which (1) there
is a presumption in favor of the middle term, (2) the
presumption can be overcome in favor of the upper term only if
at least one circumstance in aggravation is found to be true,
and (3) the elements of the offense cannot be considered as
aggravating factors.
In most instances, a jury verdict or a defendant’s plea
will reflect only the elements of the offense. In such cases,
the statutory middle term 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.” (Blakely, supra,
542 U.S. at p. ___ [159 L.Ed.2d at p. 413], italics omitted.)
Accordingly, imposition of the upper term in such cases falls
squarely within the holding of Blakely, and the defendant is
entitled to a jury trial on facts, other than a prior
conviction, used to increase the penalty beyond the statutory
maximum that could be imposed based solely on facts reflected by
the jury’s verdict or admitted by the defendant.
Here, the trial court’s reason for imposing the upper term
was “the vicious and unprovoked nature of the assault on the
victim” in which defendant “inflicted injuries causing the

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victim to lose consciousness and requiring suturing of the
victim’s face.” One enumerated aggravating factor in the rules
of court applies if “[t]he crime involved great violence, great
bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or
callousness.” (Cal. Rules of Court, rule 4.421(a)(1).) The
trial court’s finding seems to be related to this factor in some
respects, and the court appears to have been cognizant of the
rule that the enumerated aggravating and mitigating factors in
the California Rules of Court are illustrative, not exclusive.
(See People v. Whitten (1994) 22 Cal.App.4th 1761, 1765-1766;
People v. Charron (1987) 193 Cal.App.3d 981, 994; Cal. Rules of
Court, rule 4.408(a).)
The problem is that the aggravating circumstance or
circumstances cited by the trial court were not submitted to the
jury and proved beyond a reasonable doubt. And the aggravating
facts were not uncontested at trial nor supported by
overwhelming evidence. (See United States v. Cotton (2002)
535 U.S. 625, 631 [152 L.Ed.2d 860, 868].) Although the victim
was seriously injured, the attack was relatively brief and there
was evidence the victim might have insulted and pushed the
defendant beforehand.4 Consequently, the sentence must be
reversed and remanded to the trial court.
4 There was persuasive evidence that the victim was seriously
injured, lost consciousness, and required suturing. But the
trial court’s finding seems to relate primarily to the
circumstances of the attack rather than the serious bodily

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Before concluding, however, we note that the People
emphasize the rule of Apprendi and Blakely does not apply where
a prior conviction is used to increase the penalty of a crime.
(See Blakely, supra, 542 U.S. at p. ___ [159 L.Ed.2d at pp. 412-
414]; Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at
p. 455].) Further, the People note that defendant had a prior
prison term enhancement based on his conviction for two offenses
in an earlier case. The trial court’s finding that defendant
served a prior prison term may be considered an aggravating
circumstance in some cases. (See Cal. Rules of Court, rule
4.421(b)(3).) The People do not dispute that this particular
aggravating circumstance is inapplicable here because it would
be an impermissible dual use of facts to enhance defendant’s
sentence. (See § 1170, subd. (b).) But the People suggest “use
of a prior prison term to impose an enhancement still leaves
free the fact of the prior conviction underlying the prior
prison term to use as a circumstance in aggravation.”
We need not directly address the People’s contentions
because the trial court did not cite any aggravating
circumstance based on defendant’s record. For example, the
court did not conclude that defendant’s prior convictions “are
numerous or of increasing seriousness.” (Cal. Rules of Court,
rule 4.421(b)(2).) Accordingly, regardless of whether this or
injury to the victim, which in any case was an element of the
crime. (See Cal. Rules of Court, rule 4.420(d) [precluding dual
use of facts in aggravation].)

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some other aggravating factor relating to defendant’s record
need be proved to a jury, it is not properly at issue here.
The only remaining question is the measure of relief to
which defendant is entitled. State and federal double jeopardy
protections do not apply to noncapital sentencing
determinations. (People v. Hernandez (1998) 19 Cal.4th 835,
843; see also People v. Monge (1997) 16 Cal.4th 826, 845, cert.
granted & affd. sub nom. Monge v. California (1998) 524 U.S.
721, 724 [141 L.Ed.2d 615, 621].) Thus, on remand the People
must be given the opportunity to charge and prove to a jury one
or more aggravating circumstances in support of the upper term.
If the prosecutor declines to charge one or more aggravating
circumstances or fails to prove such allegations, then the trial
court shall resentence defendant exercising its full sentencing
discretion. (People v. Castaneda (1999) 75 Cal.App.4th 611,
613-614; People v. Calderon (1993) 20 Cal.App.4th 82, 88.)
DISPOSITION
The judgment is reversed and remanded to the trial court.
Within seven days of the date the remittitur is filed in the
trial court, the prosecutor may charge one or more aggravating
circumstances to support imposition of the upper term. If the
prosecutor elects not to charge any aggravating circumstances,

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this matter shall be set for a resentencing hearing to be held
in a manner consistent with this opinion.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
DAVIS , J.

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