P. v. Davie

Filed 3/4/05 P. v. Davie CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
TODD VINCENT DAVIE,
Defendant and Appellant.
B173037
(Los Angeles County
Super. Ct. No. VA074008)
APPEAL from a judgment of the Superior Court of Los Angeles County, Larry S.
Knupp, Judge. Affirmed in part; reversed in part.
Ronnie Duberstein, 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, Victoria B. Wilson
and John Yang, Deputy Attorneys General for Plaintiff and Respondent.
______________________________

-- 1 of 5 --

2
In this appeal, Todd Davie challenges the court’s selection of the upper term for
his sentence, claiming it violated his right to jury trial under Blakely v. Washington
(2004) ___ U.S.___ [124 S.Ct. 2531]. We agree, and reverse and remand for
resentencing.
FACTUAL AND PROCEDURAL SUMMARY
In November 2003, appellant was a psychiatric patient at Metropolitan State
Hospital in Norwalk. On the morning of November 19, as Dr. Moheb Beshay walked
down the hospital hall, appellant jumped out from the bathroom and hit Dr. Beshay in the
cheek. Appellant punched the doctor in the face and body and threw him to the floor.
Dr. Beshay lost consciousness for a moment, then became aware that appellant was on
top of him, repeatedly hitting him. As appellant was pulled away by hospital staff, he
was heard threatening to kill the doctor: “You get me medication and distress my body
and I’m going to kill you for that.”
Appellant was charged in count one with assault by means likely to produce great
bodily injury, with an allegation that he personally inflicted great bodily injury, and in
count two with making criminal threats. It also was alleged that appellant served a prior
prison term. Appellant initially plead not guilty, then changed his plea to not guilty by
reason of insanity. A jury found appellant guilty on both counts, but found the great
bodily injury allegation was not true. Appellant waived the right to jury trial on the
insanity issue and the prior prison term allegation. The court found that he was not
insane at the time of the crime, and found the prior prison term allegation true.
The court sentenced appellant to the upper term of four years on count one, with a
one year enhancement for the prior prison term. The court imposed a concurrent midterm
of two years on count two. Appellant filed this timely appeal.
DISCUSSION
Relying on Blakely v. Washington, supra, 124 S.Ct. 2531, appellant claims the
trial court’s selection of the upper term on count one violated his constitutional right to

-- 2 of 5 --

3
have a jury decide all facts necessary for imposition of this sentence. It is our view that a
Blakely argument may be presented even if it was not raised before the trial court, where,
as here, sentencing occurred before that case was decided by the Supreme Court. We
turn to the merits of the argument.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme
Court held: “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.” In Blakely, the Supreme Court explained 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. . . . 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.” (124 S.Ct. at p. 2537.)
Under Penal Code section 1170, subdivision (b), “[w]hen 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.” Like the “standard range” in the Washington sentencing
scheme considered in Blakely, the middle term under California law is the maximum
sentence the court can impose “solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant. . . .” (Blakely, supra, 124 S.Ct. 2531, 2537.) We conclude
that Blakely applies to the California determinate sentencing law.1
In our case, the court stated the basis for its imposition of the upper term: “In this
matter, the court finds that the aggravating factors, which are that the matter was
premeditated and planned, defendant’s prior convictions as an adult or commissions of
1 In United States v. Booker (2005) ___ U.S. ___ [125 S.Ct. 738], the Supreme
Court addressed the impact of Blakely on the federal sentencing guidelines. The
California Supreme Court has requested further briefing in People v. Black (S126182) on
the application of Booker to the California sentencing scheme. Pending further guidance,
we adhere to the position we have taken, that Blakely applies to the California
determinate sentencing law.

-- 3 of 5 --

4
crimes are numerous and of increasing seriousness. He has served a prior prison term. It
appears to me that the defendant is dangerous to society. I find no mitigating factors. The
court will impose the high-base term of four years on count 1.”
Appellant waived jury on the prior prison term allegation, and the court then found
that allegation true beyond a reasonable doubt. Hence, that fact was potentially available as
a factor in aggravation under the standards set out in Blakely. However, the court imposed a
one-year enhancement for the prior prison term. A fact used to enhance a prison sentence
may not also be used to impose the upper term. (Pen. Code, § 1170, subd. (b); California
Rules of Court, rule 4.420(c); People v. Jackson (1987) 196 Cal.App.3d 380, 388-389.)
The jury did not find that the crime was premeditated and planned, appellant did not
admit that fact, and the court did not find that fact beyond a reasonable doubt. Nor was
there a jury determination that appellant was a danger to society. The trial court could not
rely on either of these factors to impose the upper term.
That leaves the court’s finding that appellant’s prior convictions were numerous and
of increasing seriousness,2 a determination that may fall within the “fact of a prior
conviction” recidivist exception to the necessity for a jury finding specified in Apprendi.
(530 U.S. at p. 490.) Standing alone, this finding would support imposition of the high
term. But the court also relied on the prior prison term, which could not be used both for
enhancement and as a factor in aggravation, and on two other factors which it, not the jury,
found to be true, in violation of appellant’s right to jury. We cannot determine whether or
not the trial court would have imposed the upper term based on the recidivist factor alone,
and therefore must reverse the sentence and remand for resentencing.
2 Appellant’s probation report shows an adult history of nine prior convictions from
1983 to the time of the present crime. The crimes included (in chronological order) grand
theft auto, vehicle tampering, assault with a deadly weapon, malicious mischief, trespass,
theft and forgery by use of credit card, burglary, forgery, assault by prisoner, and battery by
prisoner.

-- 4 of 5 --

5
DISPOSITION
The judgment is reversed as to sentencing and the cause remanded for further
proceedings on that issue consistent with our opinion. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P.J.
We concur:
HASTINGS, J.
CURRY, J.

-- 5 of 5 --