P. v. Tarango

Filed 6/28/07 P. v. Tarango CA6
Opinion following remand by 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTURO TARANGO,
Defendant and Appellant.
H027847
(Monterey County
Super. Ct. No. SS021775)
Defendant Arturo Tarango was convicted of conspiracy to bring a controlled
substance into prison (Pen. Code, §§ 182, subd. (a)(1), 4573; see Pen. Code, § 184).1 The
court found a strike allegation (§ 1170.12) to be true following a court trial in accordance
with defendant's jury trial waiver. The court sentenced defendant to a total term of eight
years, which consisted of an upper term of four years doubled pursuant to section
1170.12, subdivision (c)(1).
Citing Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] and Apprendi
v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348], defendant claims that his
constitutional rights to jury trial and due process were violated by imposition of the upper
term based upon aggravating factors, including factors related to recidivism, that were not
1 All further statutory references are to the Penal Code.

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found true by a jury beyond a reasonable doubt. He also asserts that, if this court finds
his claims were waived, his counsel rendered ineffective assistance of counsel.
We initially evaluated those contentions in light of People v. Black (2005) 35
Cal.4th 1238, which now has been abrogated by the United States Supreme Court in
Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham). The
United States Supreme Court granted defendant's petition for a writ of certiorari, vacated
our judgment, and remanded the case to us for further consideration in light of
Cunningham. Cunningham held that, "[c]ontrary to the Black court's holding, our
decisions from Apprendi to Booker point to the middle term specified in California's
statutes, not the upper term, as the relevant statutory maximum." (Id. at p. ___ [127 S.Ct.
at p. 871].)
A. Factual and Procedural Background
During the fall of 2001, Parole Agent Irene Perez was employed as a narcotics
investigator by the Investigative Services Unit of the Salinas Valley State Prison. She
conducted an investigation of defendant, an inmate at the prison.
In the course of her investigation, Perez reviewed a letter dated November 5, 2001
from defendant's mother to defendant. It contained the following language: "What's
going on with Christina? I told her that I would pick up the baby clothes and money if
she wasn't planning on talking to you any longer." In November 2001, Perez reviewed a
letter from defendant to his mother. The following language in the letter led agent Perez
to believe that defendant was discussing a narcotics transaction: "I hope she does not
think she is going to do me wrong and just take off like that and make me tell the fellows
that I lost it. That will put me in a very difficult position in here. I'm going to need to
ask you to make a call to her house and ask her what is going on. Ask her if she has any
intentions of coming to see me, and if not, to give you all of the baby's clothes and the
funds that have gotten there."

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Perez began to monitor calls. During a telephone call between defendant and his
mother, his mother indicated she had called Christina. She told defendant, "[S]he had
already given me all the baby clothes." Defendant subsequently asked, "Was there three
sets of clothes that she gave you for the baby?' His mother replied that she did not know
and she did not even look through it. Later in the phone conversation, they made a third
party call to Christina and defendant spoke with Christina directly.
On November 24, 2001, defendant's mother attempted to visit defendant. His
mother consented to a search and surrendered a blue balloon from her vaginal area.
Inside the balloon, there were three bindles containing approximately 60 grams of a
substance that tested positive for methamphetamine. A unit of sale in the prison is about
a quarter gram, which is approximately the size of a matchstick head. A matchstick head
was worth about $45 to $50 in prison.
Perez indicated that inmates use code words when discussing drugs on the
telephone and, in this case, "baby clothes" meant narcotics.
At sentencing, the trial court explained its choices as follows: "[I]n looking at the
overall situation, the fact of a prior non-strike murder conviction that defendant suffered
as a juvenile; his ongoing gang affiliation; the clear indication in this case of in-prison
dealing, these drugs were headed for Mr. Tarango, and he clearly was going to distribute
them within the institution; the fact that it was a large amount of drugs, $10,000 worth;
also, given the fact that he has been a failure on probation in the past; his attitude
indicates a clear commitment to gangs and crime, and a deep commitment to those
things; for those reasons, the court both denies probation and selects the upper term of
four years in State Prison, doubles that to an 8-year State Prison commitment by virtue of
the one strike that was found to be true."
B. No Forfeiture
The People urge us to find that defendant forfeited his claim of Blakely error by
failing to object below. "The forfeiture doctrine is a 'well-established procedural

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principle that, with certain exceptions, an appellate court will not consider claims of error
that could have been--but were not--raised in the trial court. [Citation.]' [Citations.]"
(People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
Before Blakely, however, the California Supreme Court had understood that
Apprendi applied to sentence enhancements. (People v. Sengpadychith (2001) 26 Cal.4th
316, 326.) In Blakely, the United States Supreme Court applied Apprendi to Washington
State's determinate sentencing scheme and declared that the "statutory maximum" is the
maximum sentence a judge may impose without finding any additional facts beyond the
facts reflected in the jury's verdict. (Id. at p. ___ [124 S.Ct. at pp. 2534-2535, 2537].)
We conclude that a claim of Blakely error was not forfeited by defendant's failure
to object below to upper term sentencing since sentencing occurred before Blakely was
decided on June 24, 2004. (Cf. People v. Turner (1990) 50 Cal.3d 668, 703-704
[unreasonable to expect defense counsel to anticipate change in the law]; cf. also People
v. DeSantiago (1969) 71 Cal.2d 18, 22-23, 27-28.)
C. Blakely Error
In Cunningham, the United States Supreme Court reiterated: "[T]he Federal
Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to
impose a sentence above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584,
122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S.Ct.
2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005). '[T]he relevant "statutory maximum," ' this Court has clarified, 'is
not the maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.' Blakely, 542 U.S., at 303-
304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham, supra, at p. ___ [127 S.Ct. at
p. 860].) The court concluded that, under California's determinate sentencing law, "the

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middle term prescribed in California's statutes, not the upper term, is the relevant
statutory maximum. 542 U.S., at 303, 124 S.Ct. 2531 . . . ." (Id. at p. ___ [127 S.Ct. at p.
868].)
California's sentencing scheme was held defective because "circumstances in
aggravation are found by the judge, not the jury, and need only be established by a
preponderance of the evidence, not beyond a reasonable doubt [citation]. . . ."
(Cunningham, supra, at p. ___ [127 S.Ct. at p. 868].) The court declared that California's
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.' 530 U.S.,
at 490, 120 S.Ct. 2348." (Ibid.)
In this case, the trial court relied on a number of factors in aggravation. Most of
those aggravating factors were constitutionally impermissible because they concern facts
other than a prior conviction that were not found by a jury beyond a reasonable doubt.
But the court's use of defendant's prior juvenile adjudication as an aggravating factor did
not offend Apprendi or Blakely since it may be properly characterized as a "prior
conviction." (See Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139, 1152 ["in the face of
authority that is directly contrary to Tighe, and in the absence of explicit direction from
the Supreme Court, we cannot hold that the California courts' use of Petitioner's juvenile
adjudication as a sentencing enhancement was contrary to, or involved an unreasonable
application of, Supreme Court precedent"]; U.S. v. Burge (11th Cir. 2005) 407 F.3d 1183,
1187-1191; U.S. v. Jones (3rd Cir. 2003) 332 F.3d 688, 694-696; United States v. Smalley
(8th Cir. 2002) 294 F.3d 1030, 1031-1033; People v. Superior Court (2003) 113
Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1313-1316;
People v. Bowden (2002) 102 Cal.App.4th 387, 391-394; but see U.S. v. Tighe (9th Cir.
2001) 266 F.3d 1187, 1194 [juvenile adjudications do not fall within Apprendi's "prior
conviction" exception].)

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Defendant further argues that Almendarez-Torres v. United States (1998) 523 U.S.
224 [118 S.Ct. 1219], which held that the federal Constitution does not require that a
prior conviction be treated as an element of an offense (id. at pp. 239-247), should be
overturned. He understands, however, that the decision remains controlling authority and
is binding on us. (U.S. Const., art.VI, cl. 2 ["laws of the United States . . . shall be the
supreme law of the land; and the judges of every state shall be bound thereby, any thing
in the Constitution or laws of any state to the contrary notwithstanding"]; see Calderon v.
City of Los Angeles (1971) 4 Cal.3d 251, 258; People v. Bradley (1969) 1 Cal.3d 80, 86.)
The probation report indicated there were no factors in mitigation. Imposition of
an upper term still may be a proper exercise of discretion under section 1170, subdivision
(b), since "[o]nly a single aggravating factor is required to impose the upper term (People
v. Castellano (1983) 140 Cal.App.3d 608, 614-615 . . .) . . . ." (People v. Osband (1996)
13 Cal.4th 622, 728; see Pen.Code, § 1170, subd. (b).) We remand the case for
resentencing, however, because the record does not establish that the Blakely error was
harmless beyond a reasonable doubt (see Washington v. Recuenco (2006) ___ U.S. ___
[126 S.Ct. 2546, 2553] [failure to submit a sentencing factor to the jury is not structural
error]; Neder v. United States (1999) 527 U.S. 1, 8 [119 S.Ct. 1827]).

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The judgment is reversed and the matter remanded for the limited purpose of
resentencing in light of Cunningham.
_____________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.

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