P. v. Mayzes

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Filed 4/30/07 P. v. Mayzes CA1/2
Opinion on remand from United States 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL EDWARD MAYZES,
Defendant and Appellant.
A106553
(Marin County
Super. Ct. No. SC132695)
INTRODUCTION
Defendant Miguel Edward Mayzes pleaded guilty to inflicting corporal injury on
his spouse. Although the probation department recommended probation, the trial court
sentenced him to the upper term of four years in state prison. Defendant contends that in
so doing the trial court violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely),
and also improperly relied on uncharged offenses and elements of the underlying offense.
Here, in our fourth opinion in this case, we again hold as we did in our first opinion, that
the trial court’s sentence of defendant to the upper term did violate Blakely. We thus
remand with directions to the trial court to reconsider defendant’s sentence.
By way of background, on April 8, 2005, we filed our first opinion, where we
agreed with defendant’s claim of Blakely error, and disagreed with defendant’s other
claims of sentencing error. (People v. Mayzes (April 8, 2005, A106553 [nonpub. opn.]
(Mayzes I).) Thereafter the California Supreme Court granted review and ultimately

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remanded for reconsideration in light of People v. Black (2005) 35 Cal.4th 1238, in
which that Court held there is no constitutional right to a jury trial or proof beyond a
reasonable doubt on aggravating factors.
On October 25, 2005, we issued our second opinon in this case, in which we
vacated our earlier opinion and, following Black, rejected defendant’s Blakely claim.
(People v. Mayzes (October 25, 2005, A106553 [nonpub. opn.] (Mayzes II).)
On November 8, 2005, defendant filed a petition for rehearing, noting that
Mayzes II failed to address the non-Blakely issues that had been addressed in Mayzes I.
We granted rehearing, and on December 21, 2005, issued Mayzes III, rejecting
defendant’s Blakely claim as we did in Mayzes II and rejecting defendant’s other claims
as we had in Mayzes I. (People v. Mayzes (Dec. 21, 2005, A106553 [nonpub. opn.].)
On February 20, 2007, the United States Supreme Court issued an order granting
certiorari, vacating the judgment, and remanding to us for consideration in light of
Cunningham v. California (2007) __U.S. __, 127 S.Ct. 856. (Mayzes v. California
(2007) __ U.S. __ [127 S.Ct. 1239].) Following that, defendant submitted a letter on
February 20, 2007, requesting that in light of Cunningham we reissue our original
opinion with appropriate modification, and without the need for further briefing. On
March 9, 2007, the Attorney General filed opposition, urging that “the more prudent
course of action may be to stay these proceedings and await direction from the California
Supreme Court and the Legislature on the proper remedy.”
We disagree with the Attorney General and conclude that defendant’s request is
well taken, and no further briefing will add to that originally submitted by the parties.
We accordingly issue the within opinion, holding that defendant’s Blakely claim has
merit, and remanding to the trial court with directions to reconsider defendant’s sentence
in accordance with the views here expressed.

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FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2003, defendant’s wife went to a hospital emergency room with
severe bruises, swelling, and abrasions on her face and neck.1 When law enforcement
personnel were called to investigate, she reported to them that she had awakened that
morning in extreme pain, but did not recall how she had been injured. The victim told
the officers that her seven-year-old daughter had told her that “Daddy did that to you.”
The victim explained that defendant was a martial arts expert and had assaulted her many
times in the past, though she had never reported it. 2 The daughter told the officers that
her father hit her mother frequently. She said the couple had been fighting the day her
mother was injured, and that she had seen her father punch and kick her mother and call
her names.
The investigating officers found defendant and arrested him. He told them that he
had suffered a work-related back injury, and was in constant pain. He said he had
“whited out,” and that when he regained consciousness, he had his hands on the victim’s
neck. He indicated that he had had similar experiences in the past. In later discussions
with the probation officer, defendant attributed his loss of consciousness to a stress
reaction from pain, and requested counseling.
On December 1, 2003, defendant was charged with assault by means likely to
cause great bodily injury (Pen. Code, § 245, subd. (a)(1)3) and inflicting corporal injury
upon a spouse or cohabitant (§ 273.5, subd. (a)), with an allegation, as to both counts, of
personal infliction of great bodily injury under circumstances involving domestic
1 Appellant and his wife separated after the incident that led to his conviction, and
the record suggests that she had instituted divorce proceedings by the time appellant was
sentenced. We will therefore refer to her from now on as the victim rather than as
appellant’s wife. Because appellant pleaded guilty, the facts are taken from the probation
officer’s presentence report.
2 Appellant has no prior criminal record.
3 All further unspecified references to statutes are to the Penal Code.

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violence (§ 12022.7, subd. (e)). After a psychological evaluation, defendant was found
competent to stand trial.
On March 12, 2004, in accordance with a negotiated disposition, defendant
pleaded guilty to the felony of inflicting corporal injury on a spouse resulting in a
traumatic condition. (§ 273.5, subd. (a).) No specific sentence was promised in
exchange for the guilty plea, but the assault charge and the great bodily injury allegation
were dismissed. Defendant did not waive his right to have the dismissed offenses
excluded from consideration in connection with his sentencing. (See People v. Harvey
(1979) 25 Cal.3d 754 (Harvey).)
The probation report, which was dated April 16, 2004, listed two aggravating
factors: (1) defendant’s behavior caused the victim not only significant physical harm,
but also emotional harm, and she was extremely fearful of him (Cal. Rules of Court,
rule 4.421(a)(1)4 ); and (2) defendant had engaged in violent conduct indicating a serious
danger to society, particularly in that he claimed not to remember the event and his
violent behavior toward the victim had occurred on a number of prior occasions. The
report identified as mitigating factors defendant’s assertion that he was in a “white out”
state and not aware of his behavior; his lack of a prior criminal record; and his
acknowledgment at the time of his arrest that he was aware that he had hurt the victim.
The report noted that defendant had successfully completed college and had a history of
steady employment prior to his significant back injury. The report recommended that
defendant be placed on probation with a one-year jail term and treatment conditions.
However, it suggested that if defendant were sentenced to prison, he be given the middle
term.
On April 22, 2004, the probation department submitted an additional statement
from the victim for consideration in connection with the sentencing. The victim asserted
that defendant had abused her severely and frequently throughout their marriage, using
his martial arts skills to do so. She also asserted that he had sent her a letter from jail
4 All further unspecified references to rules are to the California Rules of Court.

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addressing her by a name he had told her he would use if he intended to kill her, and
expressed fear that he would kill her if he were released from custody.
Defendant submitted a psychological evaluation, dated April 27, 2004, which had
been conducted at the request of his defense counsel. The evaluator diagnosed defendant
as suffering from schizotypal personality disorder, which is similar to schizophrenia but
of lesser severity, and possibly also from depression. She opined that defendant’s
reported “white outs” could have been caused by the schizotypal personality disorder,
and recommended that he undergo treatment in the form of long-term psychotherapy,
low-dose antipsychotic medications, and possibly anti-depressants. She also
recommended that defendant reside with his mother5 and that he be barred from contact
with the victim and their children until his psychiatric disorder was under better control.
At the initial sentencing hearing on April 30, 2004, the judge recognized that
defendant had “some form of mental health problem,” and stated that “[w]hether
[defendant] can be kept safely away from the victim is my biggest concern.” Defendant
said he did not know where the victim and their children currently resided, and his
counsel assured the court that defendant had made no efforts to locate them and was
willing to abide by a recently issued family court order barring him from contact with his
wife and allowing him to see his children only under professional supervision. The judge
continued the sentencing for a week to allow defendant’s counsel to complete the details
of a proposed mental health treatment plan and monitoring system for defendant, but
cautioned that he was “skeptical” about the idea of probation and “quite concerned that
[defendant] is very dangerous . . . for whatever reason, probably including some form of
mental health problem, to his spouse and children.”
After the initial sentencing hearing, defendant’s counsel submitted documentation
regarding a private electronic monitoring firm that was available to monitor defendant if
5 Appellant’s mother offered to have him reside with her in Alameda County if he
were granted probation, and averred that she could and would supervise him closely, with
the help of her extended family. Appellant concurred in this proposal.

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he were placed on probation. At the hearing, counsel gave the court the names and
qualifications of two psychotherapists who could treat defendant, and a list of family and
community members who were willing to oversee him when neither his mother nor his
grandmother were available, so that he would be under 24-hour supervision. The court
also received numerous character reference letters from members of his family and
community urging that he be granted probation.
In the meantime, however, the court had also received, through the prosecutor, two
letters from the victim. In her letters, the victim reiterated that defendant had repeatedly
used his martial arts skills to abuse her. She asserted that he had practiced ways of killing
her and had moved the family to Marin in order to isolate her so that he could abuse or
even kill her with impunity. She also reported that defendant had told her he would be
put on probation rather than sent to prison because of his educational background; that he
was knowledgeable about psychology; and that “he would gladly run circles around a
psychologist for a few days a week to keep his freedom and teach me the final lesson.”
The prosecutor acknowledged that defendant must have made this statement before the
date of the offense to which he pleaded guilty, because he had had no contact with the
victim since then.
At the continued sentencing hearing on May 7, 2004, the victim appeared and
made a brief unsworn statement in open court confirming the contents of her letters and
again imparting her fear that defendant would kill her. She expressed concern that
having defendant’s mother supervise him on probation would be ineffective, because his
mother had known of the past abuse, had done nothing to stop it, and could not be trusted
to do so. Defendant’s mother responded by contending that the victim “seems very
troubled,” and reiterated that she and her support network would ensure that defendant
had no contact with the victim, would supervise him, and would make sure he got
treatment for his mental illness. Defendant’s counsel pointed out that although defendant
did not deny his physical abuse of the victim, he did deny the psychological abuse she
alleged, which had not been part of the charges and had not been independently verified.

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At the conclusion of the continued sentencing hearing, the trial court denied
probation and imposed the upper term of four years in state prison, as urged by the
prosecutor. The judge explained his choice of the upper term by stating that “in view of
all of the circumstances of this incident, it appears that its aggravated nature, both in
terms of the substantial and continuing injury to the principal victim, and the perpetration
of the activity in the presence of children of tender years, make it clearly an aggravated
event.” Defendant’s notice of appeal was timely filed on May 17, 2004.
DISCUSSION
Although defendant’s trial counsel vigorously urged that he be given probation, on
appeal he does not challenge the trial court’s decision to impose a prison term. He
argues, however, that the trial court erred in imposing the upper term, contending both
that this decision violated Blakely, supra, 542 U.S. 296, and that it reflected other errors
independent of Blakely.
In Blakely, the Supreme Court held that a Washington State court denied a
criminal defendant his constitutional right to a jury trial by increasing the defendant’s
sentence for second-degree kidnapping from the “standard range” of 53 months to
90 months based on the trial court’s finding that the defendant acted with “deliberate
cruelty.” (Blakely, supra, 542 U.S. at pp. 303-304.) The Blakely court found that the
state court violated the rule previously announced in Apprendi v. New Jersey (2000)
530 U.S. 466, 490 (Apprendi) that, “ ‘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, at p. 301.)
In reaching this conclusion, the court clarified that, for Apprendi purposes, the “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.” (Blakely,
supra, at pp. 303-304.)
In response to defendant’s argument that Blakely invalidates his upper term
sentence, the People contend that California’s “triad” sentencing system does not
implicate Blakely at all, and that any one of the three legislatively authorized terms for an

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offense, including the upper term, can be imposed by a trial court without violating a
defendant’s Sixth Amendment rights. Under the People’s view of the California system,
although there is a “presumptive mid-term sentence,” the upper term is the statutory
maximum sentence that the trial court has discretion to impose.
The People’s argument may have been persuasive before Blakely was decided.
Now, however, it is flatly contradicted by the Supreme Court’s holding that the statutory
maximum is not the maximum sentence a judge may impose after finding additional
facts, but rather the sentence it may impose without making any additional findings.
(Blakely, supra, 542 U.S. at pp. 303-304.) Under California’s determinate sentencing
law, the maximum sentence a judge may impose for a conviction without making any
additional findings is the middle term. Section 1170, subdivision (b), states that “the
court shall order imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime.” Furthermore, California Rules of Court, rule
4.420, subdivision (b), states that “[s]election 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.” In our view, therefore, Blakely precludes the imposition of
upper term sentences under California’s determinate sentencing law on the basis of
aggravating factors that have not been found by a jury to exist beyond a reasonable doubt.
The People also argue that even if Blakely applies, defendant cannot rely on it,
because his guilty plea precludes him from raising any constitutional challenge to his
sentence without first obtaining a certificate of probable cause as required by
section 1237.5. We agree with defendant that the controlling authority on that question is
People v. Buttram (2003) 30 Cal.4th 773 (Buttram). Buttram held that no certificate of
probable cause is required when a defendant pleads guilty under an arrangement that
provides for a range of possible sentences, and then seeks to argue on appeal that the trial
judge erred in imposing a sentence at the top of that range. (Id. at p. 777.) This is
precisely the fact pattern here. Defendant’s plea bargain involved an agreement to
dismiss another charge and an enhancement allegation, but did not address sentencing at
all.

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The People attempt to distinguish Buttram on the basis that defendant’s challenge
is a constitutional one rather than an attack on the trial judge’s exercise of sentencing
discretion, citing People v. Young (2000) 77 Cal.App.4th 827 and People v. Cole (2001)
88 Cal.App.4th 850.6 This argument is without merit. In Buttram, the Supreme Court
stated that in determining whether a certificate of probable cause is necessary for an
appeal following a guilty plea, “ ‘the critical inquiry is whether a challenge to the
sentence is in substance a challenge to the validity of the plea, thus rendering the appeal
subject to the requirements of section 1237.5. [Citation.]’ [Citation.]” (Buttram, supra,
30 Cal.4th at p. 782.) A challenge to a sentence is deemed to challenge the validity of the
plea “ ‘if the sentence was part of a plea bargain. [Citation.] It does not if it was
not . . . .’ ” (Id. at p. 785.) Thus, the test under Buttram does not focus on the grounds of
the challenge to the sentence, but only whether or not the sentence was a specified term
of the plea bargain.
6 In People v. Cole, supra, 88 Cal.App.4th 850, the plea bargain provided that the
defendant would plead no contest with the assurance that his maximum sentence would
be 25 years to life instead of more than 75 years to life, as it would have been without the
bargain. (Id. at pp. 858-859, 873.) The court imposed the 25-year sentence, and the
defendant sought to argue on appeal that the sentence was cruel and unusual punishment.
The Court of Appeal held the defendant could not make that argument without a
certificate of probable cause. The court noted that although the argument was styled as a
challenge to the sentence, it really was a challenge to the validity of the plea, because the
plea bargain expressly authorized a sentence of up to 25 years to life, the sentence the
defendant received. That term was a negotiated term of the bargain, given in
consideration for the reduction in exposure. Having agreed to the bargain, the defendant
could not challenge the sentence given pursuant to it. (Id. at p. 873.)
In People v. Young, supra, 77 Cal.App.4th 827, the defendant agreed to a
maximum sentence of 25 years to life in return for the prosecution’s agreement not to
seek consecutive sentences, which would have increased the maximum punishment to
52 years to life. (Id. at p. 830.) As in Cole, the defendant sought to argue on appeal that
the sentence was cruel and unusual punishment. Holding that the defendant could not do
so without a certificate of probable cause, the court stated: “The prosecution agreed to a
maximum sentence of 25 years to life in return for defendant’s plea. Yet, defendant now
attacks that maximum sentence on the ground that it is cruel and unusual punishment. By

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Unlike the defendants who sought to appeal in People v. Young, supra,
77 Cal.App.4th 827, and People v. Cole, supra, 88 Cal.App.4th 850, defendant’s
challenge to the imposition of the upper term in no way implicates the validity of the plea
bargain itself, which did not include an agreement to a four-year sentence, or indeed to
any prison sentence at all. Instead, defendant is arguing that the sentence imposed by the
court, independently of the plea bargain, is illegal under Blakely. This is a challenge to
the sentence, not the plea. Under the rationale of Buttram, such an appeal does not
require a certificate of probable cause, even if the appellant raises constitutional
arguments.
We also reject the People’s contention that defendant forfeited his right to claim
Blakely error by failing to raise this issue in the trial court. Because of the constitutional
implications of the error at issue, we question whether the forfeiture doctrine applies at
all. (See People v. Vera (1997) 15 Cal.4th 269, 276-277 [claims asserting deprivation of
certain fundamental, constitutional rights not forfeited by failure to object].)
Furthermore, there is a general exception to this rule where an objection would have been
futile. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648, and authority discussed
therein.) We have no doubt that, at the time of the sentencing hearing in this case, an
objection that the jury rather than the trial court must find aggravating facts would have
been futile. (See § 1170, subd. (b); Cal. Rules of Court, rules 4.409 & 4.420-4.421.) In
any event, we have discretion to consider issues that have not been formally preserved for
review. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error,
§ 36, p. 497.) Since the purpose of the forfeiture doctrine is to “encourage a defendant to
bring any errors to the trial court’s attention so the court may correct or avoid the errors”
(People v. Marchand (2002) 98 Cal.App.4th 1056, 1060), we find it particularly
arguing that the maximum sentence is unconstitutional, he is arguing that part of his plea
bargain is illegal and is thus attacking the validity of the plea.” (Id. at p. 832.)

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inappropriate to invoke that doctrine here in light of the fact that Blakely was decided
after defendant was sentenced.7
Accordingly, we turn to the merits of defendant’s Blakely argument. As already
noted, the sentencing judge explained that his choice of the upper term was based on “the
substantial and continuing injury to the principal victim, and the perpetration of the
activity in the presence of children of tender years, make it clearly an aggravated event.”
These factors clearly fall within the ambit of Blakely, and were neither proven beyond a
reasonable doubt nor admitted by defendant. No other aggravating factors were cited,
and because defendant has no prior criminal record, no recidivism-related factors could
have played a part in the judge’s decision.8 Thus, the imposition of the upper term was
based solely on factors which, in our view, the trial court could not properly consider
under Blakely.
Moreover, we cannot find that this error was harmless beyond a reasonable doubt. 9
In finding the aggravating factors on which the upper term was based, the trial judge
7 We are not persuaded otherwise by the People’s references to two federal cases,
which, they contend, characterize Apprendi claims that were not raised in the trial court
as forfeited notwithstanding the fact that Apprendi was decided while the cases were on
appeal. (See United States v. Cotton (2002) 535 U.S. 625; U.S. v. Ameline (9th Cir.
2004) 376 F.3d 967.) As these cases illustrate, under federal appellate procedure,
characterizing a claim as “forfeited” does not mean that the claim may not be reviewed
on appeal. Rather, such a claim is reviewed for “plain error.” In addition, we note that
after the close of briefing in this case, the Ninth Circuit withdrew its original opinion in
U.S. v. Ameline, supra, 376 F.3d 967; issued a new opinion (U.S. v. Ameline (9th Cir.
2005) 400 F.3d 646); and subsequently issued yet another opinion en banc. (U.S. v.
Ameline (9th Cir.2006) 409 F.3d 1073.
8 At least some recidivism-related aggravating factors are valid, even under a
Blakely analysis, in light of Apprendi, supra, 530 U.S. 466.
9 Because the Blakely court rested its holding on Apprendi, supra, 530 U.S. 466,
we apply the standard of prejudice applicable to Apprendi errors, which is the “Chapman
test.” (See People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) Applying that test, we
must determine whether the failure to obtain jury determinations as to the aggravating
factors discussed above was harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24.)

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relied in large part on the victim’s unsworn and uncorroborated statements regarding
defendant’s past behavior. Our review of the record does not convince us beyond a
reasonable doubt that a jury would have necessarily drawn the same conclusions for this
proffer as did the sentencing judge. Accordingly, we concur with defendant that Blakely
requires that defendant be resentenced.10
DISPOSITION
The cause is remanded to the trial court with directions to reconsider defendant’s
sentence in accordance with the views expressed herein. The judgment is otherwise
affirmed.
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
10 As noted, defendant also contends that the trial court erred in treating as
aggravating factors conduct by defendant that either was inherent in the charge to which
he pleaded guilty, or constituted uncharged criminal conduct that the court was barred
from considering under Harvey, supra, 25 Cal.3d 754. These issues are moot given our
resolution of the Blakely issue.

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