P. v. Birrey

Filed 3/11/05 P. v. Birrey CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H026596
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. CC254536)
ANTONIO MADINA BIRREY,
Defendant and Appellant.
_____________________________________/
Defendant pleaded guilty to two counts of forcible lewd conduct on a child
under the age of 14 (Pen. Code, § 288, subd. (b)(1)). The trial court imposed
concurrent upper terms of eight years in state prison. Defendant asserts that the trial
court’s imposition of upper terms violates Blakely v. Washington (2004) 124 S.Ct.
2531. He also asserts that the aggravating circumstances identified by the trial court
were either not supported by any evidence or were elements of the offenses that could
not be used to justify imposition of an upper term. Because we conclude that the trial
court’s imposition of upper terms violates Blakely, we reverse the judgment and
remand for resentencing in compliance with Blakely.

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I. Background
Defendant was charged by complaint with two counts of forcible lewd conduct
on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)), and it was further
alleged that he was ineligible for probation under Penal Code section 1203.066,
subdivision (a)(1). Defendant waived his right to a preliminary hearing, and he
pleaded no contest to both counts.
The probation report identified three aggravating circumstances: (1) the crime
involved violence; (2) the victim was particularly vulnerable; and (3) defendant took
advantage of a position of trust or confidence. The report also identified two
mitigating circumstances: (1) defendant had no prior record and (2) he acknowledged
his wrongdoing at an early stage. The probation officer recommended the imposition
of consecutive six-year midterm sentences for a total term of 12 years in state prison.
At the sentencing hearing, defendant’s trial counsel sought concurrent mitigated
or midterm sentences. He challenged the aggravating circumstances identified in the
probation report. The court found defendant statutorily ineligible for probation and
imposed concurrent eight-year upper terms. The court identified five aggravating
circumstances that it believed justified the upper terms: (1) “defendant occupied a
position of trust in relationship to the victim;” (2) “there was force used;” (3) “the
victim requested the defendant to stop and he continued;” (4) “there was skin-to-skin
contact;” and (5) “the victim was young and innocent indicating in the Court’s mind
her vulnerability.”
II. Analysis
A. Waiver or Forfeiture
The Attorney General claims that defendant waived his Blakely contention by
failing to object on this ground below. We conclude that defendant has not forfeited
this issue by failing to object at the sentencing hearing.

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California courts “have excused a failure to object where to require defense
counsel to raise an objection ‘would place an unreasonable burden on defendants to
anticipate unforeseen changes in the law and encourage fruitless objections in other
situations where defendants might hope that [the law] would be changed on appeal.’”
(People v. De Santiago (1969) 71 Cal.2d 18, 23 [evidentiary error]; People v. Welch
(1993) 5 Cal.4th 228, 237-238 [sentencing error].)
Defendant’s sentencing hearing occurred in May 2003. The United States
Supreme Court issued its decision in Blakely in June 2004. Until Blakely, it was well
accepted in California that there was no Sixth Amendment right to have a jury decide
fact questions underlying sentencing decisions on a particular count. (See People v.
Wiley (1995) 9 Cal.4th 580, 585.) The holding in Apprendi v. New Jersey (2000) 530
U.S. 466 appeared to be inapplicable to California sentencing decisions because those
sentencing decisions did not increase the penalty for the crime beyond the statutory
maximum. (See People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1232.) To the
extent that defendant asserts that Blakely alters that perception, Blakely was an
unforeseen change in the law. We conclude that it would be unreasonable for us to
find this issue forfeited solely because defendant’s trial counsel failed to anticipate the
need for an objection on a ground that did not at that time reasonably appear to have
merit.
B. Blakely
The Attorney General claims that Blakely does not apply to California’s
sentencing scheme because it is significantly different from the Washington scheme
invalidated in Blakely. While there are distinctions between the California and
Washington sentencing schemes, these differences do not mean that Blakely is
inapplicable to California’s determinate sentencing scheme. A careful examination of

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Blakely demonstrates that the procedure by which defendant was sentenced here
violated the Sixth Amendment, and therefore defendant’s sentence is invalid.
Blakely had pleaded guilty to second degree kidnapping with a firearm and
involving domestic violence. (Blakely at pp. 2534-2535.) His plea did not encompass
his admission of any additional facts beyond the elements of this offense. (Blakely at
p. 2534.) The statutorily prescribed “standard range” sentence for this offense was 49
to 53 months. However, a sentence above the “standard range,” up to a maximum of
10 years, could be imposed if the judge found “substantial and compelling reasons” for
a higher sentence. An illustrative list of aggravating factors was set forth in a statute.
An element of the offense could not be used as an aggravating circumstance, and the
judge was required to state his or her reasons for imposing a sentence higher than the
“standard range.” These reasons would be reviewed on appeal for sufficiency of the
evidence. (Blakely at p. 2535.)
The prosecution recommended a “standard range” sentence. But the judge
heard testimony from the victim and decided that Blakely’s “deliberate cruelty”
justified imposition of a sentence of 90 months, 37 months higher than the top of the
“standard range.” Blakely objected to the aggravated sentence, and the judge held an
evidentiary hearing. After the hearing, the judge reiterated his “deliberate cruelty”
finding and the 90-month sentence. (Blakely at pp. 2535-2536.)
On appeal, Blakely claimed that he had a “federal constitutional right to have a
jury determine beyond a reasonable doubt all facts legally essential to his sentence.”
The question before the U.S. Supreme Court was whether Apprendi applied in this
situation since the 10-year maximum had not been exceeded even though the 90-month
term exceeded the top of the “standard range” that applied in the absence of additional
factual findings by the judge that had not been made by the jury. (Blakely at pp. 2536-
2537.)

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The U.S. Supreme Court held that the Washington procedure by which Blakely
had been sentenced violated the Sixth Amendment, and the resulting sentence was
constitutionally invalid. “Our precedents make clear, however, 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.
[Citations.] 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 at p. 2537, original emphasis.) “Whether the judge’s authority to
impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one
of several specified facts (as in Ring), or any aggravating fact (as here), it remains the
case that the jury’s verdict alone does not authorize the sentence. The judge acquires
that authority only upon finding some additional fact.” (Blakely at p. 2538.)
C. Application of Blakely Here
Defendant’s crimes are each punishable by one of three possible terms: three,
six or eight years. (Pen. Code, § 288, subd. (b)(1).) “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.” (Pen. Code, § 1170, subd. (b).) The trial
court was required to impose the six-year middle terms and could not impose the
eight-year upper terms unless it found that there were “circumstances in aggravation”
that justified upper terms. Since “[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)), the aggravating
circumstances that are used by a trial court to justify imposition of an upper term

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necessarily must be based on facts that are not part of a plea that encompasses only the
elements of the offense. The court must state its reasons for imposing the upper term
(Rule 4.420(e)), and those reasons must be supported by substantial evidence on
appeal. (People v. Searle (1989) 213 Cal.App.3d 1091, 1096.) The court need only
find these aggravating circumstances true by a preponderance of the evidence.
(People v. Leung (1992) 5 Cal.App.4th 482, 506.)
California’s determinate sentencing scheme is analogous to the Washington
sentencing scheme with respect to Blakely. Washington’s sentencing scheme has a
“standard range” sentence that may be imposed without any additional findings
beyond the elements of the crime, and a higher sentence that may be imposed only if
the court makes factual findings that there are aggravating circumstances. California’s
sentencing scheme has a middle term sentence that may be imposed without any
additional findings beyond the elements of the crime, and an upper term sentence that
may be imposed only if the court makes factual findings that there are aggravating
circumstances. Just as the “statutory maximum” for Blakely purposes under the
Washington scheme is the top of the “standard range,” the “statutory maximum” for
Blakely purposes under California’s scheme is the middle term. Under both schemes,
a fact that is an element of the offense may not be used to impose the upper term. And
under both schemes the court must state reasons for the imposition of the upper term
that must be supported by substantial evidence on appeal.
Imposition of an upper term in California, like imposition of a sentence higher
than the “standard range” in Washington, depends upon factual findings beyond the
admitted or jury-adjudicated elements of the crime. This is precisely what the U.S.
Supreme Court found violated the Sixth Amendment in Blakely. Defendant, like
Blakely, pleaded guilty to his offenses and did not admit any elements other than the
elements of his offenses. The trial court then made additional factual findings beyond
the elements of defendant’s crimes and utilized those factual findings to justify

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imposition of the upper term. This procedure violated the Sixth Amendment in the
same way that the sentencing procedures in Blakely violated the Sixth Amendment.
Because defendant’s pleas did not justify the imposition of the upper term, the
trial court’s factual findings in support of the upper term violated defendant’s Sixth
Amendment rights under Blakely. His sentence is therefore invalid.
D. Prejudice
The Attorney General asserts that the trial court’s violation of defendant’s Sixth
Amendment rights was harmless beyond a reasonable doubt because the court’s
factual findings were supported by the evidence. Assuming that such a standard of
prejudice may properly be applied where no jury was convened at all, we conclude
that the record before us does not demonstrate beyond a reasonable doubt that a jury
would necessarily have found true all or any of the aggravating circumstances found
true by the trial court. Indeed, there appears to be substantial merit to defendant’s
argument on appeal that two of the five aggravating circumstances (use of force and
the victim’s age) were elements of the offenses that could not be used to aggravate and
that one of the three remaining circumstances (position of trust) was supported by little
if any evidence. Whether the two remaining circumstances (skin-to-skin contact and
failure to stop upon request) would have been found to outweigh the mitigating
circumstances is uncertain. Under these circumstances, the Attorney General has
clearly failed to satisfy his burden of demonstrating beyond a reasonable doubt that the
trial court’s error in failing to afford defendant a jury trial on the aggravating
circumstances did not prejudice defendant.
III. Disposition
The judgment is reversed, and the matter is remanded for resentencing in
compliance with Blakely.

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_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Rushing, P.J.
_____________________________
Premo, J.

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