P. v. Vasquez

Filed 8/6/07 P. v. Vasquez CA4/1
Opinion following remand by U.S. Supreme Cour t
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FERNANDO VASQUEZ,
Defendant and Appellant.
D042623
(Super. Ct. No. SCN140092)
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Remanded with directions.
After a jury acquitted Fernando Vasquez of first-degree murder and failed to reach
a verdict on the charge of second-degree murder, Vasquez pled guilty to voluntary
manslaughter (Pen. Code, § 1921) and personal use of a deadly weapon (§ 12022, subd.
(b)(1)). The court sentenced Vasquez to 12 years in state prison, consisting of the upper

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term of 11 years for voluntary manslaughter and a consecutive one-year term for the
personal use enhancement. Vasquez appealed, contending the trial court abused its
discretion by sentencing him to the upper term for voluntary manslaughter.
In the first appeal, we asked the parties for supplemental briefing regarding the
applicability of Blakeley v. Washington (2004) 542 U.S. 296 (Blakely) on this appeal.
Vasquez contended in his brief that under Blakely, the court's factual findings justifying
its imposition of the upper term violated his Sixth Amendment right to a jury trial. The
People responded (1) Vasquez forfeited this claim by failing to object to the sentence in
the trial court; (2) Vasquez was required to obtain a certificate of probable cause; (3)
there was no constitutional violation under Blakely; and (4) even if the sentence was
erroneously imposed, the error was harmless. We disagreed with the People, reversed the
judgment, vacated the sentence and remanded for resentencing consistent with Blakely.
Vasquez petitioned for review in the California Supreme Court, which granted the
petition and directed us to vacate our judgment in light of People v. Black (2005) 35
Cal.4th 1238 (Black). (Cal. Rules of Court, rule 29.3(d).) We did so in an unpublished
opinion that was appealed to the United States Supreme Court, which granted certiorari,
vacated our opinion and remanded the case to us for further consideration in light of
Cunningham v. California (2007) 127 S.Ct. 856. We remand with directions.
1 All further statutory references are to the Penal Code.

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FACTUAL AND PROCEDURAL HISTORY
On September 2, 1999, Vasquez killed Gustavo Vega during a fight. Vega was
stabbed seven times in his left leg, right buttocks, abdomen, and chest.
After a nine-day jury trial, the jury acquitted Fernando Vasquez of first-degree
murder but could not reach a verdict on the charge of second-degree murder. After the
court declared a mistrial, Vasquez pled guilty to voluntary manslaughter and personal use
of a deadly weapon. The plea agreement provides that Vasquez "unlawfully killed
Gustavo Vega with a knife during a sudden quarrel/heat of passion and in the honest but
unreasonable belief in the necessity for self-defense." Vasquez initialed that he
understood that as a result of the plea, he could receive a maximum sentence of 12 years.
At the sentencing hearing, prior to counsels' arguments, the court stated that it
"was in general agreement" with the probation department's recommendation that
Vasquez be sentenced to the upper term for manslaughter. The court continued, "I did
find the aggravants under [Rules of Court, rule] 4082 as indicated by the probation
department for the defendant fleeing the scene and the country. [¶] The primary one that
you may want to concentrate on in your remarks that I agreed with was under [Rules of
Court, rule] 421 (a)(1).3 It did appear from the state of the evidence that the stabbing
2 Rules of Court section 4.408, subd. (a) states: "The enumeration in these rules of
some criteria for the making of discretionary sentencing decisions does not prohibit the
application of additional criteria reasonably related to the decision being made. Any such
additional criteria must be stated on the record by the sentencing judge."
3 Rules of Court section 4.421, Circumstances in aggravation, subd. (a)(1) states:
"Facts relating to the crime, whether or not charged or chargeable as enhancements,
include the fact that: (1) The crime involved great violence, great bodily harm, threat of

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occurred while the decedent was running away from [Vasquez]. So I did find [Rules of
Court, rule] 421 (a)(1) to be the primary circumstance in aggravation."
Defense counsel objected to the court's finding of aggravated factors and pointed
out that under the parameters of the plea agreement, Vasquez killed Vega in the honest,
but unreasonable belief in the need for self-defense, which negated the presumption that
he killed Vega in a cruel manner. Defense counsel argued that the court's factual findings
did not comport with either Vasquez's testimony or other evidence, including the
placement of the wounds and the lack of defensive wounds.
DISCUSSION
I. Waiver
We reject the People's contention Vasquez waived the Blakely sentencing issue by
failing to object under Apprendi v. New Jersey (2000) 530 U.S. 466, 490, which provides:
"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." Because Blakely was decided after Vasquez's sentencing,
Vasquez cannot be said to have knowingly and intelligently waived his right to a jury
trial. (Blakely, supra, 542 U.S. at p. 310.) Additionally, Vasquez vigorously argued
against the court's imposition of an upper term sentence, contending the court's factual
findings were outside the parameters of the plea agreement and did not comport with the
evidence presented at trial.
great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or

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II. Certificate of Probable Cause
We also reject the People's contention that Vasquez was required to obtain a
certificate of probable cause. Defendants who enter a guilty plea may not appeal
their convictions unless the trial court executes and files a certificate of probable cause.
(§ 1237.5) There is an exception to this requirement for "issues regarding proceedings
held subsequent to the plea for purpose of determining the . . . penalty to be imposed."
(People v. Buttram (2003) 30 Cal.4th 773, 780 (Buttram); see Rules of Court, rule 8.304,
subdivision (b)(4)(B) [certificate of probable cause not required for "grounds that arose
after entry of the plea and do not affect the plea's validity"].) To determine whether
section 1237.5 applies to the imposition of a sentence, "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." (Buttram, supra, 30
Cal.4th at p. 782.) An appeal of a sentence challenges the validity of the plea "if the
sentence was part of a plea bargain. [Citation.] It does not if it was not . . . " (People v.
Lloyd (1998) 17 Cal.4th 658, 665.)
The cases the People rely on are easily distinguishable. (People v. Panizzon
(1996) 13 Cal.4th 68, 79; People v. Cole (2001) 88 Cal.App.4th 850, 868; People v.
Young (2000) 77 Cal.App.4th 827, 834.) Unlike the defendants in those cases, Vasquez
does not contend his sentence violates the prohibition against cruel and unusual
punishment. Instead, he contends the court violated his Sixth Amendment right to a jury
callousness[.]"

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trial by sentencing him to the upper term based upon facts not determined by a jury
beyond a reasonable doubt. Accordingly, a certificate of probable cause is not required.
III. Sentencing
Vasquez contends that under Cunningham the trial court erred by imposing the
upper term sentence because it used aggravating factors not found true by a jury beyond a
reasonable doubt, admitted by him, or related to his recidivism. At sentencing, the trial
court stated that Vasquez's lack of a prior record was a "substantial mitigant," but
imposed the upper term specifically because by "the number of knife wounds, and how
this stabbing occurred, and fleeing the scene, and changing his name," Vasquez's conduct
presented "very substantial aggravants in this case."
When a trial court imposes an upper-term sentence, it must articulate findings of
fact and conclusions of law to support it. (Blakely, supra, 542 U.S. at p. 299.) In the
context of a plea, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be admitted by the defendant. (Id. at pp. 302-303.) "[T]he
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 fact
findings. When a judge inflicts punishment that the [plea agreement] alone does not
allow, the [court] has not found all the facts 'which the law makes essential to the
punishment, [citation] . . . and the judge exceeds his proper authority.' " (Id. at pp. 303-
304.)
In Blakely, the defendant, in a plea agreement, admitted the elements of second
degree kidnapping and allegations involving domestic violence and use of a firearm, but

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no other relevant facts. (Blakely, supra, 542 U.S. at pp. 298-299.) The facts admitted in
the plea supported a maximum sentence of 53 months, but the trial court increased the
defendant's sentence to 90 months based on a judicial finding of aggravating factors. (Id.
at p. 298.) The United States Supreme Court held the sentence was impermissible
because it was based on facts not admitted in the plea agreement. (Id. at p. 304.)
In Cunningham, the jury's verdict alone limited the permissible sentence to 12
years. (Cunningham, supra, 127 S.Ct. at p. 870.) Additional fact finding by the trial
court, however, yielded an upper term sentence of 16 years in violation of the defendant's
right to a jury trial. (Id. at p. 860-861.) The United States Supreme Court explained,
"factfinding to elevate a sentence from 12 to 16 years . . . falls within the province of the
jury employing a beyond-a-reasonable-doubt standard." (Id. at p. 870.)
The recent California Supreme Court case, People v. Sandoval (S148917)
__ Cal.App.4th __ [2007 D.A.R. 11051], controls this case, and the sentence must be
vacated because "[n]one of the aggravating circumstances cited by the trial court come
within the exceptions set forth in Blakely[, supra, 542 U.S. 296]. Defendant had no prior
criminal convictions. All of the aggravating circumstances cited by the trial court were
based upon the facts underlying the crime; none were admitted by defendant or
established by the jury's verdict. We conclude, accordingly, that defendant's Sixth
Amendment rights were violated by the imposition of an upper term sentence."

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DISPOSITION
The sentence is vacated and the matter remanded to the trial court for resentencing
consistent with this opinion.4 In all other respects, the judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
4 We note Penal Code section 1170(b) was recently modified to provide that
"[w]hen a judgment of imprisonment is to be imposed and the statute provides three
possible terms, the choice of the appropriate term within the sound discretion of the
court[.]"

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