P. v. Pacheco

Filed 4/24/07 P. v. Pacheco CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN PACHECO,
Defendant and Appellant.
B189441
(Los Angeles County
Super. Ct. No. BA291350)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert Perry, Judge. Affirmed as modified.
Alan Stern, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and
G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________

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Juan Pacheco appeals from the judgment entered following his conviction by jury
on two counts of attempted second degree robbery and two counts of attempted extortion,
with findings the offenses were committed for the benefit of, at the direction of or in
association with a criminal street gang. Pacheco contends that he was sentenced in
violation of his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296
[124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549
U.S. __ [127 S.Ct. 856] (Cunningham). We agree with Pacheco and impose a midterm
sentence instead of the upper term on one count for a reduction of one year in his
aggregate sentence.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Pacheco was charged by amended information with two counts of attempted
second degree robbery (Pen. Code, §§ 211, 664)
1
(counts 1 and 2) and two counts of
attempted extortion (§§ 518, 664) (counts 3 and 4) against Maria Tzintzun (counts 1 and
3) and Carlos Bermejo (counts 2 and 4). The amended information specially alleged with
respect to the attempted robbery charges in counts 1 and 2 a firearm enhancement under
Penal Code section 12022.53, subdivisions (b) and (e)(1), and with respect to the
attempted extortion charges in counts 3 and 4 a firearm enhancement under section
12022.5, subdivision (a)(1). A criminal street gang enhancement was alleged as to all
counts (§ 186.22, subd. (b)(1)(A)).
2. Summary of the Evidence Presented at Trial
a. The People’s Evidence
Maria Tzintzun, her husband Juan Bermejo, and their family lived in the Del Rio
Housing Project in Los Angeles. On the night of March 26, 2005, Tzintzun and Bermejo
heard a loud noise on the street and went to investigate what they thought was a traffic
collision near their house. They came upon two damaged cars and a group of men,
including Pacheco, beating a lone man. Tzintzun attempted to stop the assault by
1
Statutory references are to the Penal Code.

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standing between the assailants and the victim. Pacheco demanded to know why
Tzintzun was protecting the victim and who would pay for the damages resulting from
the traffic collision. To prevent further harm to the victim, Tzintzun agreed to pay for the
damages. The victim fled before police arrived. Officers arrested the driver of the other
car on outstanding warrants and Tzintzun returned home with Bermejo.
At around 1:00 a.m. the next day, Tzintzun, Bermejo, and some family members
answered a knock on the front door. At the door were Pacheco and Ratha Chhuk, who
had also been at the scene of the traffic collision. Chhuk spoke in English, demanding to
know the whereabouts of the beating victim. Pacheco translated what Chhuk was saying
to Tzintzun and Bermejo into Spanish. Tzintzun explained that the beating victim did not
live with them. Chhuk produced a gun, pointed it at the couple and their family, and said
that “everybody was going to die that night.” Chhuk and Pacheco demanded $5,000.
Tzintzun told them that she did not have any money. Pacheco, still translating for Chhuk,
told them to “[b]eware of the consequences.” Chhuk and Pacheco left, but when Pacheco
was about 40 feet from the front door, he pointed a gun at her. Tzintzun reported the
incident to police.
Tzintzun and Bermejo independently identified Pacheco and Chhuk as the men
who threatened them with harm and demanded money at gunpoint. Police were
subsequently involved in a high speed chase of a car that nearly struck a police unit.
Pacheco was a passenger in the car. He along with the driver and another passenger were
taken into custody.
Los Angeles Police Department Officer Anthony Saenz testified as a gang expert
that Pacheco had identified himself to Saenz as a member of the Oriental Boys gang and
was in the car with self-admitted gang members when he was arrested. Saenz confirmed
that the Pueblo Del Rio Housing Project was rife with gang activity and was claimed by
the Five Duece Pueblo Bishops and the Oriental Boys, who coexist as Blood Gangs. The
primary activities of the Oriental Boys gang were vandalism, robbery, narcotics sales,
extortion and instilling fear in the community. After a hypothetical based on the facts of

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the case, Saenz opined the attempted robbery and extortion were committed to benefit the
gang.
b. The Defense Evidence
Pacheco testified in his defense that he had never been a gang member and had
never told police that he belonged to a gang. In the afternoon of March 26, 2005, he was
across the street from the Pueblo Del Rio Housing Project after visiting a friend when he
saw Ratha Chhuk. Pacheco agreed to accompany Chhuk to the home of a Spanish-
speaking family and to translate into Spanish that Chhuk wanted the family to repay a
debt. Pacheco translated Chhuk’s request for money and was told there was no money to
pay off the debt. After some additional conversation, Pacheco and Chhuk left. Pacheco
denied that either he or Chhuk had possessed or pointed a gun at anyone or that he knew
Chhuk was a gang member, or that Pacheco had been at the scene of the traffic collision.
3. The Jury’s Verdict and the Trial Court’s Sentence
The jury convicted Pacheco of the attempted second degree robbery charges in
counts 1 and 2 and the extortion charges in counts 3 and 4. It found true the specially
alleged criminal street gang enhancement as to all counts, but found not true the specially
alleged firearm enhancements as to all counts.
At sentencing the trial court considered Pacheco’s probation report and identified
two aggravating factors – Pacheco’s pattern of increasingly serious conduct based on his
prior arrests and apparent “convictions” (Cal. Rules of Court, rule 4.421(b)(2)), 2
and the
victims’ particular vulnerability (rule 4.421(a)(3)) – and no mitigating factors.
3
Defense counsel argued Pacheco should receive probation or, in the alternative, he
should be sentenced to the lower term based on his insignificant criminal history and his
limited involvement in the current offenses. Following argument, the trial court stated it
2
References to rule or rules are to the California Rules of Court.
3
The probation report reflects a juvenile petition alleging the offense of carrying a
concealed firearm and two adult criminal cases charging narcotics possession that were
pending at the time.

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would use the attempted second degree robbery offense of count 1 as the principal term
and would impose the upper term due to Tzintzun’s particular vulnerability and the
absence of mitigating factors. The court sentenced Pacheco to an aggregate state prison
term of eight years, eight months: The upper term of three years on count 1 for the
attempted second degree robbery of Tzintzun, plus five years for the criminal street gang
enhancement, plus eight months on count 2 (one-third the middle term of two years) for
the attempted second degree robbery of Bermejo. (§§ 213, subd. (2)(b), 18.) Sentences
were stayed pursuant to section 654 on counts 3 and 4 for the attempted extortion of the
same victims.
DISCUSSION
In this appeal, Pacheco contends the trial court’s imposition of an upper term
sentence for attempted second degree robbery (count 1) based on facts neither found by a
jury to be true beyond a reasonable doubt nor admitted by Pacheco violated his right to a
jury trial under Blakely, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530
U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi).
After briefing in this case was completed, the United States Supreme Court issued
its opinion in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]. We
requested that the parties submit letter briefs addressing the impact of Cunningham on
this case. Pacheco contends that his upper term sentence is improper under Apprendi,
supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and now Cunningham, supra, 549
U.S. __ [127 S.Ct. 856], because the trial court’s use of an aggravating factor identified in
rule 4.421(b)(2) exceeded the scope of the Apprendi exception for a prior conviction and
further the trial court relied on other aggravating factors in violation of the Sixth
Amendment. The Attorney General argues that any Apprendi/Blakely/Cunningham
objections have been forfeited and that Pacheco’s sentence is constitutionally valid.
According to the Attorney General, Pacheco forfeited his claim of error because
he did not object on Apprendi or Blakely grounds in the trial court even though his
sentencing hearing took place more than a year after the United States Supreme Court
issued its decision in Blakely. We disagree. At the time of Pacheco’s sentencing hearing

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(February 15, 2006), the California Supreme Court had already decided People v. Black
(2005) 35 Cal.4th 1238 (Black). In light of Black’s conclusion that the judicial
factfinding incident to a judge’s exercise of discretion to impose an upper term sentence
under California law does not implicate a defendant’s Sixth Amendment right to a jury
trial (id. at p. 1244), Pacheco’s objection in this regard would have been futile.
Accordingly, he has not forfeited his claim that the sentencing procedure in his case
violated the Sixth Amendment. (People v. Boyette (2002) 29 Cal.4th 381, 432; People v.
Abbaszadeh (2003) 106 Cal.App.4th 642, 648.)
Under Apprendi, supra, 530 U.S. at page 490, “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 United States Supreme Court emphasized 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 ‘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, supra, 542
U.S. at pp. 303-304, original italics.)
Then, in considering California’s Determinate Sentencing Law on the record
before it, the Cunningham court observed: “[A]n upper term sentence may be imposed
only when the trial judge finds an aggravating circumstance. [Citation.] An element of
the charged offense, essential to a jury’s determination of guilt, or admitted in a
defendant’s guilty plea, does not qualify as such a circumstance. [Citation.] Instead,
aggravating circumstances depend on facts found discretely and solely by the judge. In
accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the
upper term, is the relevant statutory maximum. [Citation.] Because circumstances in
aggravation are found by the judge, not the jury, and need only be established by a

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preponderance of the evidence, not beyond a reasonable doubt . . . , the [Determinate
Sentencing Law] violates Apprendi’s bright-line rule: Except for 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.’ [Citation.]”
(Cunningham, supra, 127 S.Ct. at p. 868.)
Citing Almendarez-Torres v. United States (1998) 523 U.S. 224, the Attorney
General argues that there was no Cunningham violation in this case because “a defendant
does not have a right to a jury trial for a sentence based on the fact of a prior conviction.”
(Italics added.) We disagree. The trial court indicated its “tentative” to find as an
aggravating circumstance (in addition to the victim’s vulnerability) the fact that Pacheco
“has a pattern of increasingly serious conduct” in light of “some prior narcotics arrests
and apparent convictions.” (Italics added.) However, as summarized above, the
probation report indicated that the narcotics matters were pending, and the trial court
heard argument in this regard.
The prosecutor did not refer to the narcotics arrests, and, although defense counsel
referred to one case as “on Prop 36,” the trial court ultimately stated it would impose the
upper term sentence on count 1 based on the absence of mitigating circumstances and the
victim’s vulnerability: “I find the vulnerability of the victim is sufficient to warrant the
imposition of a high term of three years.” Because this record falls short of establishing
the fact of a prior conviction, we reject the Attorney General’s contention that the
imposition of the upper term sentence in this case was authorized and, as a result,
unassailable.
Under the Supreme Court’s decision in Cunningham, supra, 127 S.Ct. at page 869,
“If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must
find an additional fact to impose the longer term, the Sixth Amendment requirement is
not satisfied.” Accordingly, imposition of the upper term in this case violated the Sixth
Amendment because the aggravating factor on which it was purportedly based—the
victim’s vulnerability—was neither admitted by Pacheco nor found true beyond a
reasonable doubt by the jury.

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As stated in Washington v. Recuenco (2006) 548 U.S. __, 126 S.Ct. 2546, 2551-
2553, the failure to submit a sentencing factor to the jury is subject to harmless error
analysis under the standard set forth in Chapman v. California (1967) 386 U.S. 18. (See
also People v.Sengpadychith (2001) 26 Cal.4th 316, 327 [Apprendi error evaluated under
Chapman standard].) While a jury reasonably could have made a true finding beyond a
reasonable doubt as to the “particular vulnerability” of the victim involved in count 1, we
cannot conclude beyond a reasonable doubt that a jury would have done so. Therefore,
we cannot say that the constitutional error was harmless, and the upper term sentence on
count 1 must be modified.
We conclude that there is no need to remand this matter to the trial court. If we
were to remand the matter for a new sentencing hearing, the trial court would have no
discretion to impose an upper term sentence because Pacheco did not admit to any
aggravating factors and none were found true by the jury beyond a reasonable doubt.
Instead, the trial court could only consider whether to impose a midterm sentence or
lower term sentence on count 1. However, having reviewed the record including the trial
court’s comments at sentencing, we find it beyond a reasonable doubt that the trial court
in exercising its discretion would not have imposed the low term under any
circumstances. Accordingly, we modify the judgment to impose the middle term of two
years on count 1, for a decrease of one year in Pacheco’s aggregate prison term.
DISPOSITION
The judgment is modified to impose the middle term of two years (instead of the
upper term of three years) on count 1, but in all other respects, Pacheco’s sentence
remains unchanged. The clerk of the superior court is ordered to prepare a new abstract
of judgment reflecting the imposition of the two-year term on count 1 (plus five years for

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the criminal street gang enhancement, plus eight months on count 2, with sentences on
counts 3 and 4 stayed). The clerk of the superior court shall forward a copy of the new
abstract of judgment to the Department of Corrections.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WOODS, J.
We concur:
PERLUSS, P. J.
ZELON, J.

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