P. v. Jones

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Filed 6/21/07 P. v. Jones 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
LEONARD C. JONES,
Defendant and Appellant.
A106916
(San Francisco County
Super. Ct. No. 180997)
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 August 29, 2006, 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. Jones (Aug. 29, 2006,
A106916 [nonpub. opn.]), which we incorporate here by reference. There, relying upon
People v. Black (2005) 35 Cal.4th 1238, we rejected defendant’s contention that

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imposition 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 (Blakely). We now reexamine that determination in light of Cunningham.
The Trial Court’s Sentencing Decision
The trial court sentenced defendant to a term of 40 years to life in prison for the
murder and 13 years consecutive for assault, including firearm enhancements. The total
sentence included a consecutive mid-term sentence of three years for assault with a
deadly weapon and aggravated 10-year enhancement, for personal use of a firearm.
The trial court gave as reasons for the aggravated sentence that defendant “was
convicted of other crimes for which consecutive sentences could have been imposed but
for which this Court intends to sentence concurrently,” and his behavior in this case
showed he “is a serious danger to society.” It ordered the terms to run consecutively
based on its finding that the crimes and objectives were predominantly independent of
one another.
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.)
The People argue that no Cunningham error occurred because the court relied in
part on the fact that defendant was convicted of other crimes for which the court could
have but did not impose consecutive sentences. But, on this record, we cannot conclude
beyond a reasonable doubt that the court would have imposed the same sentence had it
considered only the other convictions and not that defendant posed a serious risk to
society. Nor can we say that were the question presented to it, the jury would have
concluded defendant posed a serious risk to society 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 defendant’s risk to society as determined by the court on a

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preponderance of the evidence, we vacate the sentence and remand to the trial court for
resentencing.
The People maintain defendant forfeited his Blakely claim by failing to raise it at
his August 15, 2005, sentencing hearing. We disagree. In Black, our Supreme Court
analyzed California’s sentencing scheme in light of Blakely and held that “the judicial
factfinding that occurs when a judge exercises discretion to impose an upper term
sentence or consecutive terms under California law does not implicate a defendant’s
Sixth Amendment right to a jury trial.” (People v. Black, supra, 35 Cal.4th at p. 1244.)
In light of that holding, and before Cunningham, it would have been futile for defendant
to raise a Blakely objection at sentencing. “Reviewing courts have traditionally excused
parties for failing to raise an issue at trial where an objection would have been futile or
wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5
Cal.4th 228, 237-238.) We thus conclude defendant did not waive his claim of Blakely
error by failing to object in the trial court.
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 judgment is vacated as to sentencing only. In all other respects, the judgment
is affirmed for the reasons stated in our prior opinion in this case. The matter is

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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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