P. v. Bell

Filed 2/10/05 P. v. Bell CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL XAVIER BELL,
Defendant and Appellant.
B171066
(Los Angeles County
Super. Ct. No. NA047579)
APPEAL from a judgment of the Superior Court of Los Angeles County. Judge
Joan Comparet-Cassini. Reversed and remanded for resentencing.
Marylou Hillberg, 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, Lawrence M. Daniels,
Deputy Attorney General, and Mary Sanchez, Supervising Deputy Attorney General, for
Plaintiff and Respondent.

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Michael Bell appeals from the judgment imposed on resentencing, after a previous
appeal in which this court modified and affirmed his convictions of kidnapping to
commit rape or robbery (Pen. Code, § 209, subd. (b)(1); undesignated section references
are to that code), three counts of robbery (§ 211), three counts of forcible rape (§ 261,
subd. (a)(2)), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), and one count
of assault with a firearm (§§ 245, subd. (a)(2)), with jury findings that he committed the
sex offenses during the commission of a residential burglary (§ 667.61, subd. (e)(2)), that
he personally used a firearm in committing those offenses and in committing the
kidnapping and two of the robberies (§§ 667.61, subd. (e)(4), 12022.5, subd. (a)(1),
12022.53, subd. (b)), and that a principal was armed in the commission of the assault
(12022, subd. (a)(1)). Because appellant’s upper term sentence for the principal term was
based on a judicial finding in aggravation, not in accordance with Blakely v. Washington
(2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely), the matter must again be remanded for
resentencing.
BACKGROUND
Based on a rash of offenses that he and an accomplice committed after
successively entering the homes of two neighborhood families, appellant originally was
convicted as described above. The trial court imposed consecutive terms, comprising
determinate terms aggregating 28 years and eight months, an indeterminate term of 25
years to life for one of the rapes (under section 667.61, subd. (a)), and a life term for the
kidnapping.
On appeal, we affirmed the judgment, with two modifications. First, after finding
that the evidence was insufficient to show a completed kidnapping for robbery or rape,
but instead reflected an attempt to commit that offense, we modified the kidnapping
conviction to one of attempted aggravated kidnapping (§§ 664/209, subd. (b)(1)).
Second, we ordered stricken the principal-armed enhancement with respect to the assault
count (see § 12022, subd. (a)(1), former § 1170.1, subd. (a)), and we further directed that

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on resentencing, the sentence on that count be stayed, under section 654. (People v. Bell
(July 31, 2003) B158891 [nonpub. opn.].)
After receiving the remittitur, the trial court resentenced appellant, in a manner
paralleling the original sentencing. The court again chose count 2, one of the robbery
counts, as the principal determinate term, and imposed the upper term of six years (§ 213,
subd. (a)(1)(B)), plus a 10-year enhancement under section 12022.53, subdivision (b).
The court stated that “The reason I chose the high term is because of the great violence
involved in the underlying crime.” Next, the court again imposed consecutive one-third
middle term sentences for count 1 and counts 4 through 9, including the attempted
aggravated kidnapping in count 8. For each of these counts, the court stated a separate
reason for the consecutive sentence. The court then imposed but stayed a mid-term
sentence for count 10, the assault with a firearm. The unstayed determinate sentences
totalled 29 years. Finally, with respect to the rape conviction in count 3, the court again
imposed a term of 25 years to life, per section 667.61, subdivision (a). The aggregate
sentence thus amounted to 54 years to life.
Appellant again filed a notice of appeal, and we appointed counsel to represent
him. Counsel originally filed a brief raising no issues. (See People v. Wende (1979) 25
Cal.3d 436, 441-442.) On May 18, 2004, we advised appellant that he had 30 days
within which to submit, by brief or letter, any grounds of appeal, contentions, or
argument he wished this court to consider. On June 4, 2004, we received a letter from
appellant, dated May 26, 2004, summarily raising three questions, none of which, as
explained below, is cognizable on this appeal.
On June 24, 2004, the United States Supreme Court decided Blakely, supra, 124
S.Ct. 2531. On August 19, 2004, we invited the attorneys for appellant and respondent to
file letter briefs, regarding the propriety, in light of Blakely, of the upper term and
consecutive sentences the trial court had imposed on resentencing, and regarding the
proper disposition if we found those aspects of the sentencing erroneous under Blakely.
In response, counsel for both appellant and respondent filed letter briefs, taking contrary

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positions about whether the upper base term and consecutive sentencing were at odds
with Blakely’s constitutional restrictions. Upon inquiry, both counsel subsequently
informed us that they considered the appeal ripe for determination without oral argument.
DISCUSSION
We first briefly address the issues that appellant personally raised in his May 26,
2004 letter, namely (1) a claim of ineffective assistance of trial counsel, (2) failure to
hold a fitness hearing (Welf. & Inst. Code, § 707, subd. (a)), and (3) a request that the
gun “that was used against me on trial” be tested for fingerprints. None of these claims
provides a basis for challenging the present judgment on resentencing. The second and
third issues should have been raised, if at all, on appellant’s original appeal, and they now
have been waived. Moreover, on the merits, appellant was not entitled to a fitness
hearing, by reason of Welfare & Institutions Code section 707, subdivision (b). Finally,
any post-appeal claim of ineffective assistance of counsel would have to be raised and
documented by petition for habeas corpus.
There remain for consideration the contentions that appellant’s consecutive and
upper base term sentences were imposed in violation of Blakely, supra, 124 S.Ct. 2531.
In Blakely, Washington’s standard range of sentence for second-degree kidnapping was
49 to 53 months. The trial court, however, imposed an “exceptional” sentence of 90
months, based on the court’s finding that the defendant had acted with “‘deliberate
cruelty,’ a statutorily enumerated ground for departure in domestic-violence cases.” (124
S.Ct. at p. 2535.) Reversing for violation of the right to jury trial (U.S. Const., 6th &
14th Amends.), the Supreme Court reiterated and applied the rule it had stated 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.”
The Blakely court rejected Washington’s assertion that the relevant “statutory maximum”
sentence was the general maximum of 10 years for the class of felonies involved. Rather,
the court explained, “the ‘statutory maximum’ for Apprendi purposes is the maximum

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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 additional findings.” (Blakely, supra,
124 S.Ct. at p. 2537.)
Respondent preliminarily asserts that appellant “forfeited” (i.e., waived) any
claims under Blakely by failing to raise them at resentencing. We disagree. First,
appellant could not have invoked Blakely at the time of sentencing, because the decision
had not yet then been rendered. That the high court had already decided Apprendi, supra,
530 U.S. 466, is of no consequence, because it is Blakely’s clarification of the “statutory
maximum” sentence under Apprendi that provides the viable basis for appellant’s claims.
Conversely, an objection made before Blakely would have been futile. Finally, a waiver
by appellant would not preclude this court itself from inquiring into the validity of his
sentence under Blakely. (People v. Williams (1998) 17 Cal.4th 141, 161, fn. 6.)
Appellant contends that his resentencing violated the strictures of Blakely, because
the court, not the jury, made various findings of aggravating factors (Cal. Rules of Court,
rule 4.421)1 to authorize appellant’s consecutive and upper term sentences. Moreover,
the court was required so to find only by a preponderance of the evidence. (Rules
4.420(b), 4.425(b).)
Appellant’s consecutive sentencing, based on judicial findings of facts not
necessarily embraced in the jury verdicts, did not run afoul of Blakely. Appellant himself
states the primary reason: “The central holding of Blakely (and the preceding opinion in
Apprendi) is 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.” But consecutive sentencing did not and
does not increase the penalty for any of the crimes of which appellant was convicted
1 Further references to these rules are made to “rules.”

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beyond their statutory maxima. Indeed, with one exception, the terms that the trial court
imposed to run consecutively (see § 669) were each one-third of the middle term (see
§ 1170.1, subd. (a)), which, as we hold below, generally constitutes the statutory
maximum as defined in Blakely.2 Accordingly, appellant’s consecutive sentences and the
manner of their imposition were not erroneous under that decision.
We reach a different conclusion, however, with regard to appellant’s further
contention that his upper base term sentence on count 2 was imposed in conflict with
Blakely’s principles. Once again, Blakely precludes imposition, without qualifying jury
findings, of a sentence greater than the statutory maximum for the offense, meaning the
maximum that may be imposed based on the facts of the conviction, without additional
findings. (Blakely, supra, 124 S.Ct. at p. 2537.) Under section 1170, subdivision (b), the
court must impose the middle term, unless it finds “circumstances in aggravation . . . of
the crime.” (Accord, rule 4.420(a).) Thus, just as the upper term requires additional
findings in aggravation, the middle term necessarily constitutes the statutory maximum
term as defined in Blakely. But imposition of the upper term – as occurred here – based
on a judicial finding in aggravation does not comport with Blakely and its jury trial
guarantee. (Accord, People v. Vu (2004) 124 Cal.App.4th 1060.) We find unpersuasive
respondent’s contrary argument, in essence that an upper term sentence is part of an
authorized “sentencing range,” and may validly be chosen even though the statutory
scheme provides for that choice to be made upon judicial findings that exceed the verdict
(here, that the robbery in count two involved great violence).
Respondent argues that the error in imposing the upper term for count 2 should be
deemed constitutionally harmless, for various reasons. We agree with respondent’s
reasoning only to this extent: the trial court would have been entitled to aggravate the
sentence on the ground that appellant was on juvenile probation when he committed the
2 The additional, indeterminate term under section 667.61 was based on special
jury findings made beyond a reasonable doubt.

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offense. (See Blakely, supra,, 124 S.Ct. at p. 2536, quoting Apprendi, supra, 530 U.S. at
p. 490; rule 4.421(b)(4).) But because the court relied on this factor to impose another
term consecutively, the present sentence cannot be justified on this ground. Rather,
remand for resentencing is required.
DISPOSITION
The judgment is reversed and the case is remanded, solely for resentencing in
accordance with Blakely, supra, 124 S.Ct. 2531.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COOPER, P.J.
We concur:
RUBIN, J.
BOLAND, J.

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