P. v. Emmert

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Filed 6/27/07 P. v. Emmert CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BOOKER TED EMMERT,
Defendant and Appellant.
E039817
(Super.Ct.No. FVI 019468)
OPINION
APPEAL from the Superior Court of San Bernardino County. Stephen H.
Ashworth, Judge. Affirmed in part; reversed in part with directions.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia,
Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney
General, for Plaintiff and Respondent.

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Defendant Booker Ted Emmert appeals from judgment entered following jury
convictions for attempted voluntary manslaughter (Pen. Code, §§ 664, 192 subd. (a)),1 as
a lesser offense to attempted murder, charged in count 1; shooting at an inhabited
dwelling (§ 246; count 2); and assault with a firearm (§ 245, subd. (a)(2); count 3). As to
all three counts, the jury also found true the personal gun-use enhancement (§ 12022.5,
subd. (a)). The trial court sentenced defendant to a state prison term of 13 years.
Defendant contends the trial court committed Batson2 error by allowing the
prosecution to excuse three minority jurors; the trial court erred in denying defendant’s
motion for mistrial or for a continuance based on the prosecution’s untimely production
of audible police interview tapes; and the trial court improperly imposed an aggravated
term on the gun-use enhancement in violation of Cunningham v. California (2007) 549
U.S. __, 127 S.Ct. 856, 864, 871 (Cunningham).
We affirm defendant’s convictions but reverse defendant’s sentence, based on
Cunningham, supra, 127 S.Ct. at pp. 864, 871, and remand for resentencing.
1. Facts
In July 2004, Rose Jacobs was living in an apartment, in Adelanto. Before living
there, she had lived with defendant for about a year and a half. Jacobs had five children
from a previous relationship with Douglas Williams, Sr.
Defendant knew Williams, Sr. had fathered Jacobs’s children and did not like him.
1 Unless otherwise noted, all statutory references are to the Penal Code.
2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson).

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During defendant and Jacobs’s relationship, defendant had accused Jacobs of sleeping
with Williams, Sr. and threatened to harm Jacobs if she slept with Williams, Sr. again.
During the evening of July 17, 2004, Williams, Sr. returned Jacobs’s two sons to
Jacobs after a two-week visit. When they arrived, Jacobs went to the grocery store with
Alethia Redd, the girlfriend of Williams, Sr.’s brother, Cornelius Williams. Meanwhile
Williams, Sr. stayed at Jacobs’s apartment with Cornelius and the boys, Douglas
Williams, Jr. and Christopher Williams. When defendant called Jacobs at her apartment,
Williams, Sr. told defendant that Jacobs had gone to the store and she would call back
when she returned. Defendant was no longer living with Jacobs at the time but was still
seeing her.
A couple hours later, after Jacobs had returned home and was sleeping, defendant
called again. When Williams, Sr. answered the phone, defendant told him to meet him
outside and that he was “gonna kick my ass.” Williams, Sr. went outside but defendant
was not there.
The next morning defendant called Jacobs and told her he was coming over to get
some DVD’s. Jacobs told him it was not a good time and she would call him later. A
little later, Sandra Emmert, defendant’s sister, arrived at Jacobs’s apartment and asked for
the DVD’s. Jacobs and Sandra argued at the door.
As Jacobs went to get the DVD’s, she saw defendant approach the door.
Williams, Sr. saw defendant approach the door with a gun in his hand. When defendant
reached the door, Williams, Sr. was standing in the hallway. Williams, Jr. was sitting
near the front door, on the couch, watching TV with his brother, Christopher.

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Cornelius yelled that defendant had a gun and to drop to the floor. Williams, Sr.
asked defendant why he had a gun. Defendant fired a shot into the apartment. The bullet
went into a wall near the bathroom, close to where Williams, Sr. had been standing.
The two boys testified defendant fired into the apartment toward Williams, Sr.,
who was standing in the apartment with nothing in his hands. Defendant then fled with
Sandra. Jacobs called the police. Deputy Marsh was dispatched to the crime scene. On
the way there, he stopped and apprehended defendant and Sandra, who were about a mile
and a half from Jacobs’s apartment.
Sheriff’s Detective Hoffman interviewed defendant and Sandra. Defendant told
Hoffman he aimed the gun at the ceiling and the gun immediately went off. At the time,
he was mad and confused, and lost his temper. Defendant claimed he never intended to
hurt anyone.
Defendant testified that while Sandra and Jacobs were arguing, he thought he saw
Williams with a gun. Defendant armed himself “[j]ust in case because [Williams] was a
violent man” and approached the front door. When he reached the apartment, he made
eye contact with Williams, Sr. and showed Williams, Sr. his gun. As Williams, Sr.
dashed for the hallway, defendant turned to get Sandra and defendant’s gun accidentally
discharged. Defendant saw the bullet go into the bathroom wall. No one was hurt.
Defendant denied intentionally trying to kill Williams, Sr. After firing the gun, defendant
and Sandra ran away.
Sandra testified Williams, Sr. started threatening her and defendant. Sandra
claimed she did not know where the shot came from, that defendant had a gun, or if

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defendant fired the shot.
2. Batson Error
Defendant argues that the trial court erred by denying his Batson motion (Batson,
supra, 476 U.S. 79) alleging that the prosecution improperly exercised peremptory
challenges to two Black jurors and one Hispanic juror. We disagree.
When this type of challenge is raised, a three-step analysis is required: First, the
defendant must make a prima facie showing of discrimination. Second, the burden shifts
to the prosecution to offer race-neutral explanations for excluding the jurors. Third, the
trial court must determine whether the defendant has proven purposeful discrimination.
(People v. Silva (2001) 25 Cal.4th 345, 384 (Silva); Johnson v. California (2005) 545
U.S. 162, 169.)
During voir dire, defendant objected twice to the People’s use of peremptory
strikes. The defense raised its first objection after the prosecutor exercised a peremptory
challenge to juror No. 22, a Black juror. Defense counsel also objected to the People
excusing the previous Black juror as well. The trial court responded that it was obvious
why juror No. 22 was excused: “I don’t think it raises an issue. Her son’s in jail for
killing somebody with a gun.” The court added that the other Black juror had several
relatives in prison, one of whom was in prison for robbery with a gun. The trial court
concluded there were no Batson issues regarding the two excused Black jurors and thus
denied defendant’s first Batson objection.
Defendant complains the trial court erred in not asking the prosecutor to explain
why he exercised challenges to the two Black jurors. But it was patently clear as to why

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the jurors were removed and the trial court noted this.
Defendant argues that the prosecutor did not challenge four non-minority jurors
who had criminal convictions and two jurors with close relatives who had criminal
convictions. This does not support a prima facie case of discrimination because the
offenses were nonviolent offenses, which were not similar to the instant offense and did
not involve the use of a firearm. Two of the jurors were convicted of driving under the
influence (DUI). One juror was charged with a DUI, but it was reduced to a reckless
driving conviction. The fourth juror was convicted and fined for stopping and picking up
wood on the highway. As to the relatives of two jurors, the mother-in-law of one juror
was convicted of welfare fraud and the other juror’s husband was convicted of an
unspecified crime before the juror was married, over 20 years earlier. The convictions
and related circumstances concerning the non-minority jurors significantly differed from
those concerning the two Black jurors and thus did not show any evidence of
discrimination.
The totality of the relevant facts did not give rise to an inference of discriminatory
purpose requiring an explanation. (Johnson v. California, supra, 545 U.S. at p. 169.)
The peremptory challenges for the two Black jurors were justified by “a neutral
explanation related to the particular case to be tried” (Batson, supra, 476 U.S. at p. 98)
and thus the challenges were permissible under Batson.
Defendant asserted the second Batson objection after the People used a
peremptory challenge to strike juror No. 24, a Hispanic juror. Defense counsel stated he
was asserting the objection on the ground the prosecution had once again removed a

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minority juror, whom defense counsel believed was Hispanic. The trial court said the
juror might be Italian, but asked the prosecutor why the juror was removed. The
prosecutor said that he believed the juror was not Hispanic; he did not appear to be
Hispanic and his name was Italian. Therefore the defendant had not made a prima facie
case of discrimination.
The trial court responded that it did not matter whether the juror actually was
Hispanic, and again asked why the prosecutor removed the juror. The prosecutor replied,
“I kicked him because he did not have very good answers or explanations about his past
jury service.” The trial court added, “He didn’t seem very bright.” The prosecutor
agreed. The trial court noted, “He didn’t seem like he had a grasp of certain things. . . .
I’m not sure the man was is [sic] Italian minority for purposes of Wheeler. [¶] . . . [¶]
Maybe he was Hispanic, I don’t know. But anyway, he did not seem to be too clever of
an individual for a case like this. And seems to me that it was a legitimate excusal.”
Defendant contends that although in this instance the trial court asked the
prosecutor for his reason for excusing juror No. 24, the request was perfunctory since the
court had already decided to deny defendant’s Batson motion. We do not find this
argument persuasive. The record does not show that the court made up its mind before
asking the prosecutor for his reason for challenging the juror. After the prosecutor stated
his reason for excusing the juror, the court merely indicated it agreed and elaborated that
the juror did not seem very bright, which the court believed was a valid concern due to
the serious nature of the case.

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Defendant also asserts that the prosecutor’s reason for excusing the juror, i.e., the
juror “did not have very good answers or explanations about his past jury service,” did
not distinguish the juror from others who were retained. But as the court noted, and the
prosecutor agreed, the juror was uniquely objectionable because his ability to
comprehend the proceedings was very poor. This was apparent from his responses
concerning his past jury service and was a valid distinguishing factor and permissible
race-neutral justification, particularly since the trial involved very serious charges.
Reviewing the prosecution’s reasons independently, we conclude that defendant
failed to prove discrimination under all the circumstances. (Silva, supra, 25 Cal.4th at p.
385.) Defendant has failed to establish Batson error.
3. Production of the Recording of Defendant’s Police Interrogation
Defendant contends the trial court erred in denying his motion for a mistrial or a
continuance due to the prosecution’s late production of audible tapes of defendant’s and
Emmert’s police interviews. The prosecution timely produced tapes of defendant’s and
Emmert’s police interviews but the taped interviews were very difficult to hear. It was
not until midtrial that the prosecutor informed the court and defense counsel that he had
discovered the sheriff’s department had audible tapes of the two interviews.
Defendant argues he was prejudiced by the prosecution delaying producing the
audible taped interviews until midtrial because Sandra’s tape was produced during her
cross-examination and caught her off guard. There also was insufficient time to
transcribe the two tapes and defense counsel did not have sufficient time to go over the
tapes with defendant and prepare the defense, taking into account the tapes. Defendant

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acknowledges that he is not claiming the prosecution acted in bad faith but notes that
Brady does not require such a finding for a reversal on nonproduction of material
evidence.
At the end of the prosecutor’s cross-examination of Sandra, the prosecutor asked
her if she would like to listen to her tape recorded police interview for the purpose of
refreshing her memory concerning conflicts in her testimony and the police report.
Sandra said no. On redirect, defense counsel asked Sandra if she was trying to cover up
anything for defendant. Sandra said she had no reason to do so. On recross-examination,
the prosecutor asked Sandra why she did not want to listen to the tape to see if it
refreshed her memory. Sandra said she would if he wanted her to but reasserted that she
had told the truth.
After the court excused Sandra subject to recall, defense counsel told the court in
camera that he had not received a copy of an audible recording of Sandra’s taped police
interview. The prosecutor acknowledged that the tapes defense counsel and he had were
very difficult to hear. The prosecutor said he also listened to the original tape and it was
not much better but Detective Hoffman had told him his tape was better, although it was
still difficult to hear. The prosecutor told the court he gave defense counsel the best copy
he had and noted that there were ways to enhance and improve the quality of tapes but it
was expensive. It was not done by his office and it had not been requested by the
defense.
The trial court asked defense counsel if he would like to listen over lunch to the
20- or 30-minute long tape. Defense counsel said he wanted to listen to an audible tape.

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The court said defense counsel and Sandra could listen to Hoffman’s copy during the
lunch recess. The court recessed at 11:20 a.m. and reconvened at 1:53 p.m.
After listening to the audible tape during the lunch recess, defendant moved for a
mistrial, sanctions, or a continuance. Defense counsel noted that on April 22, 2005, the
trial court ordered the prosecution to produce recordings of the police interviews in
response to defendant’s motion for production. The People produced inaudible tapes and
told the defense there was no audible copy at that time. Defense counsel claimed that had
he had audible tapes, it could have changed the entire presentation of the case. Defense
counsel added that if the court denied his motion for mistrial based on improper use of
discovery for impeachment purposes, defendant needed a continuance to review,
transcribe, and prepare the defense based on the tape of defendant’s interview.
In response, the prosecutor stated that the prosecution provided defendant with the
requested discovery. Defendant’s and Sandra’s police interviews were recorded on mini-
micro cassette tapes, as was commonly done by the prosecutor’s office. The sheriff’s
department recorded the interviews on full-size tapes. The prosecutor was told the full-
size tapes were very, very difficult to hear.
In addition, during the pretrial conference, counsel and the court discussed the
poor quality of the tapes both sides had received. The prosecutor told defense counsel he
could listen to the original tapes and defense counsel said he was going to come by the
prosecutor’s office and talk about the tapes but did not do so. The prosecutor did not
listen to them until the day of defendant’s motion for mistrial.
The prosecutor indicated he did not anticipate using Sandra’s tape because he

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expected Sandra to testify consistent with her police report statement but she did not. She
was inconsistent in three areas. This was why the prosecutor asked her if she had listened
to her taped interview.
During the lunch recess, defense counsel and Sandra listened to Sandra’s taped
interview. The court noted that defense counsel could have also listened to defendant’s
taped interview during the lunch recess. Defense counsel explained why he had not done
so and requested to listen to it at that moment, before the jury reconvened.
The trial court rejected the request but agreed to a recess after Sandra’s testimony
so that defense counsel could listen to the tape before defendant took the stand the
following day. The trial court stated that there appeared to be no prejudice in the delay in
the prosecution producing Sandra’s tape because it was consistent with her testimony.
Defense counsel acknowledged during the hearing on his motion for mistrial that the
tapes actually supported everything Sandra stated in her testimony and refuted Hoffman’s
report in many ways. The court asked if the taped interviews were consistent with
Hoffman’s report. The prosecutor claimed the report was consistent with the interviews
but defense counsel disagreed.
Defense counsel claimed the statements were inconsistent with Hoffman’s report
in three ways. Hoffman’s report stated Sandra saw the children inside the apartment.
Sandra stated during her taped interview that she did not remember seeing the children.
Hoffman’s report also said Sandra saw the gun or saw it fired. Sandra stated during her
taped interview that she did not see the gun. Also, Hoffman’s report said Sandra stated

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defendant aimed the gun at Williams. She stated during her taped interview that she did
not know if defendant was aiming at him.
The trial court stated that these inconsistencies were not significant and could be
easily cleared up. Defense counsel agreed the inconsistencies could be cleared up but
claimed that in order to do so, he would need sufficient time to prepare the defense. The
lunch recess was not enough time. The court noted he would have more time that
evening. Defense counsel also argued that the inconsistencies between Sandra’s
statement and the report were significant because they affected her credibility as a
witness.
Defense counsel complained that defendant was prejudiced by the delay in
receiving the audible tapes since he still had not received an audible tape of defendant’s
confession and defense counsel did not know if the tapes were consistent with the police
report since he had not heard the tape of defendant’s interview. Defense counsel
requested a continuance to transcribe the tapes for the jury. The court stated the jury
could simply listen to the tapes. The inconsistencies were insignificant and there was no
need to transcribe the tapes or continue the trial. Defense counsel could listen to
defendant’s taped interview during the next break and could play the tapes, if relevant,
for the jury. The tape was about an hour long.
The trial court denied defendant’s motion for a mistrial, sanctions or a
continuance, noting that “the record needs to be clear, the discovery on the defendant’s
interview, number one, was given to you by way of a report. And, of course, you have
the opportunity to talk to your client about what was said during that interview also. So

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you’re in a much better position really than the D.A. is regarding what your client said, it
seems to me. So I don’t see any discovery violations on it. These things happen, you
know. You’re lucky that there’s any tape that’s audible. Apparently there is now.”
Although the court denied defendant’s motion, it stated that defense counsel had a
right to listen to defendant’s taped interview that evening, before defendant testified the
next day. The trial then resumed with counsel questioning Sandra. Sandra testified that
the tape essentially said what she had stated during her earlier testimony. She explained a
few instances in which there appeared to be inconsistencies between her taped interview,
testimony, and the report, and concluded nothing she said during the interview was
different from what she said in her testimony.
After the prosecution finished questioning Sandra, defense counsel requested the
court to play Sandra’s taped interview for the jury as a consistent statement. The court
denied the request, finding that any inconsistencies were cleared up by Sandra’s
testimony or were irrelevant, and playing the tape was a waste of time.
Upon both counsel completing examination of Sandra, the court recessed at 2:50
p.m., until 9:30 a.m. the following morning. The prosecution gave defense counsel a
copy of the original tape of defendant’s interview. The following morning, defense
counsel called defendant to the stand. Defendant did not have a chance to listen to his
taped interview until the next day at lunch. By then, the prosecution was in the midst of
cross-examining defendant. The court concluded it would be helpful to the jury to play
defendant’s taped interview for the jury since defendant was unable to remember certain
information.

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The court denied defense counsel’s request at 11:36 a.m. to continue the trial in
order to provide the jury with a transcript of the tape. But the trial nevertheless was
delayed several days since the trial court did not try cases on Fridays or Monday
mornings. The trial was in recess from 4:30 p.m. Thursday, October 20th, until the
following Tuesday morning, October 25th.
Defendant argues that the prosecution’s delay in producing the audible tapes until
midtrial constituted a violation of the rule of Brady which “‘. . . requires disclosure . . . of
evidence that is both favorable to the accused and “material either to guilt or to
punishment.”’ [Citation.]” (People v. Roberts (1992) 2 Cal.4th 271, 330.) Defendant
asserts that Sandra’s taped statement was inconsistent with her testimony and therefore
could have been used as impeachment evidence to impugn Sandra’s credibility. As to the
prosecution’s delay in providing defendant’s taped interview, defendant complains that
he was deprived of effective representation because defense counsel only had one
evening to prepare for defendant’s testimony and did not have an opportunity before the
trial began to prepare the defense taking into account the taped interviews.
In Brady, the United States Supreme Court held that “‘the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material . . . irrespective of the good faith or the bad faith of the
prosecution.’ [Citation.]” (People v. Wright (1985) 39 Cal.3d 576, 590.) The California
Supreme Court has “imposed a stricter duty on prosecutors in this state, by requiring
them to disclose substantial material evidence favorable to the accused without request.
[Citation.] This duty applies not only to evidence that bears directly on the question of an

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accused’s guilt, but also to evidence relating to the credibility of prosecution witnesses.
[Citation.]” (Ibid.)
There are three elements of a Brady violation: “The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) “Such
evidence is material ‘if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.’
[Citations.]” (Id. at p. 280.) “The question is not whether the defendant would more
likely than not have received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence. A ‘reasonable probability’ of a different result is accordingly shown when
the government’s evidentiary suppression ‘undermines confidence in the outcome of the
trial.’” (Kyles v. Whitley (1995) 514 U.S. 419, 434, quoting United States v. Bagley
(1985) 473 U.S. 667, 678.)
Here, audible tapes were provided but they were provided late, which defendant
claims interfered with his defense and caught Sandra off guard because the audible tape
surfaced during her cross-examination. Despite the unfortunate delay in producing the
audible tapes, we cannot say that there is a reasonable probability of a different result had
the tapes been provided sooner. (Strickler v. Greene, supra, 527 U.S. at p. 280; Kyles v.
Whitley, supra, 514 U.S. at p. 434.) Likewise, defendant has failed to establish prejudice.

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While Sandra’s taped interview was relevant to her credibility, its significance was
minimal since the taped interview was consistent with Sandra’s testimony, with the
exception of a few insignificant instances concerning relatively minor matters. Defense
counsel acknowledged during the hearing on his motion for mistrial that the tape actually
supported everything Sandra stated in her testimony and refuted Hoffman’s report in
many ways.
In addition, defense counsel had an opportunity to listen to Sandra’s audible tape
before completing questioning of Sandra, and thus was able to elicit testimony from her
explaining the inconsistencies between her taped statement and her testimony.
As to defendant’s tape, although defense counsel should have received it earlier,
when the prosecutor discovered it, it was produced and defense counsel had a chance to
listen to the tape the night before defendant testified. Also, after receiving the tapes,
defense counsel had a four-day weekend to review and consider the tapes in preparation
for closing argument. Furthermore, the tapes consisted primarily of duplicative evidence,
contained in Hoffman’s report and provided in witness testimony.
Defendant has not shown prejudicial error or that there was a reasonable
probability of a different result had the tapes been timely produced.
Defendant argues that the late production of the audible tapes implicated his right
to decide intelligently whether to testify. But defendant did not raise this objection in the
trial court and defendant does not sufficiently elaborate or provide any evidence
supporting such a claim. Failure to raise an issue in the opening brief waives the
argument. (People v. Stanley (1995) 10 Cal.4th 764, 793.)

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4. Aggravated Term for Gun Enhancement
Defendant was sentenced to a three-year midterm on count 1 (attempted murder
reduced to attempted involuntary manslaughter) and a consecutive ten-year upper term
for the personal gun use enhancement.
A. Balancing Mitigating and Aggravating Factors
Defendant contends the trial court did not properly balance the mitigating and
aggravating factors when imposing the upper term as the gun-use enhancement.
Defendant claims the court completely ignored the mitigating factors which outweighed
any aggravating factors. The People argue defendant waived (forfeited) this objection
because he did not raise it in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 351-
352.)
Defendant did not forfeit the objection because he raised it at the sentencing
hearing and in his sentencing brief.
In considering defendant’s challenge on the merits, we find no impropriety in the
manner in which the court balanced the mitigating and aggravating factors. The trial
court considered the sentencing briefs, probation report, and oral argument. The record
shows that the court weighed the various factors and stated the following reasons for
imposing the upper term on the enhancement: (1) defendant “did everything in his
power” to shoot the victim; and (2) defendant fired a gun in an apartment, which was
extremely dangerous to others; the bullet penetrated the wall and almost entered the
adjoining apartment. The court rejected the vulnerability factor asserted by the People.

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In imposing the upper term on the enhancement, the trial court stated “. . . Court’s
going to sentence the defendant to the aggravated term of ten years. And the reason for
that is: Because the defendant did everything in his power, based upon the evidence, to
shoot the victim. There was no position of trust involved in this case. They did not like
each other at any point that I ever heard from the evidence. The weapon the defendant
used is of a nature where it’s so inaccurate that that’s the only reason the victim was not
shot, the Court feels. Although, it was a valid effort by the defendant because he just
missed the victim. And also, the dangerousness involved in shooting in an apartment
where the bullet penetrated the walls and almost entered the adjoining apartment where it
could have easily hit somebody. The defendant obviously, from the conviction by the
jury, and the Court concurs with that evaluation of the evidence, had the specific intent to
kill the victim when he fired at him. So for those reasons, the Court feels that the
aggravated term on the enhancement is appropriate. [¶] I believe from the evidence, that
the defendant thought he had . . . hit the victim because the victim immediately went
down after the shot. And I believe that’s why the defendant turned and ran to the car and
took off. The defendant did admit some culpability in this case, but only because he was
apprehended while fleeing the location of the shooting promptly by the sheriff’s office.”

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B. Cunningham Error
Defendant argues that, in imposing the aggravated term on the enhancement, the
trial court committed Blakely3 and Cunningham4 error by relying on aggravating factors
that were not tried by the jury, in violation of his Sixth Amendment right to a jury trial.
The People argue that because defendant failed to raise Blakely error in the trial
court, he forfeited the challenge. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1103
[holding that a Blakely challenge was forfeited by the defendant’s failure to raise it in the
trial court].)
We reject this argument. Unlike the defendant in People v. Hill, supra, 131
Cal.App.4th at page 1103, who waived a Blakely challenge by failing to raise it at his
sentencing, which occurred after Blakely but before People v. Black (2005) 35 Cal.4th
1238 (Black), defendant was sentenced on January 27, 2006, after Black was decided on
June 20, 2005. A Blakely objection would thus have been futile under the controlling law
the court was compelled to follow at that time. Under such circumstances, defendant did
not forfeit the issue. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5; City of Long
Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.)
Even if defendant forfeited the issue, to forestall any claim of ineffective
assistance of counsel based on failure to raise a timely objection, we will address the
issue on the merits. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
3 Blakely v. Washington (2004) 542 U.S. 296, 303-304 (Blakely).
4 Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856, 871
(Cunningham).

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California’s determinate sentencing law (DSL) and “the rules governing its
application, direct the sentencing court to start with the middle term, and to move from
that term only when the court itself finds and places on the record facts --whether related
to the offense or the offender --beyond the elements of the charged offense.”
(Cunningham, supra, 549 U.S. at p. __, 127 S.Ct. at p. 863; § 1170, subd. (b); Cal. Rules
of Court, rule 4.420(a).) Cunningham rejected this procedure, holding that “under the
Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must
be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by
a preponderance of the evidence.” (Cunningham, supra, at pp. 863-864.)
Defendant argues that under Cunningham, the upper term gun-use enhancement
should be reduced to the middle term because the trial court imposed an aggravated term
based on facts not found by the jury. We agree the trial court improperly relied on factors
which, under Blakely and Cunningham, required true findings by the jury. Therefore,
under Cunningham, supra, 127 S.Ct. at page 871, the trial court erred in imposing the
aggravated term based on factors that should have been decided by the jury. Such
findings by the court were improper. As stated in Cunningham: “[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.” (Cunningham, supra, at p.
860; see also Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Blakely,
supra, 542 U.S. at pp. 303-304.)

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Here, the facts relied on by the trial court were not admitted by defendant or found
true by the jury. Therefore, under Cunningham, the trial court erred in imposing an
aggravated term based on factors that should have been decided by the jury.
C. Harmless error
Under Washington v. Recuenco (2006) ___ U.S. ___, 126 S.Ct. 2546, 2552-2553
(Recuenco), such error is not structural, requiring reversal per se. We must thus consider
whether the error was harmless under Chapman v. California (1967) 386 U.S. 18, 24.
(Recuenco, supra,126 S.Ct. at pp. 2552-2553.) The record in this case reflects that,
absent the unconstitutional fact findings by the court, the trial court could not impose the
aggravated terms. There were no recidivism factors which the trial court could have
relied upon in imposing the aggravated sentences.
The People argue that we need not reverse the court’s upper term sentences
because the error was harmless beyond a reasonable doubt under Chapman v. California,
supra, 386 U.S. at page 24. The People claim the jury would have found at least one of
the aggravating factors true had the factors been presented to the jury for determination.
These contentions are unavailing.
The court imposed the upper term on the gun-use enhancement because it found
two aggravating factors. While the trial court did not mention any mitigating factors,
other than that defendant admitted culpability, there were numerous other possible
mitigating factors which the trial court did not address due to focusing primarily on the
aggravating factors, which should not have been relied on by the trial court.

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We recognize that a single aggravating factor is sufficient to impose an aggravated
upper prison term where the aggravating factor outweighs the cumulative effect of all
mitigating factors. (People v. Nevill (1985) 167 Cal.App.3d 198, 202; People v. Osband
(1996) 13 Cal.4th 622, 728-729.) But, because we can only speculate which, if any, of
the aggravating factors relied on by the court the jury would have found true, and what
effect those findings would have had on the court at sentencing when weighed against the
mitigating factors, we cannot find the Blakely error to have been harmless beyond a
reasonable doubt.
In addition, it is speculative as to whether the trial court would have imposed the
same aggravated term on the gun-use enhancement in the absence of either of the
aggravated factors since the probation report lists several mitigating factors which the
trial court might conclude outweigh any aggravated factors, particularly since the
probation officer recommended a concurrent middle term on the gun-use enhancement,
rather than a consecutive aggravated term.
The probation report states that defendant did not have any history of felony
convictions, although he had several misdemeanor convictions, including convictions in
January 1978 for exhibiting a deadly weapon/firearm, a misdemeanor (§ 417), carrying a
loaded firearm in a public place, a misdemeanor (§ 12031, subd. (a)), and possession of a
loaded gun in a vehicle, a misdemeanor (Fish & G. Code, § 2006), resulting in two years
probation and 30 days in jail. He was also convicted in July 1982 of misdemeanor
battery (§ 242), with a 60-day jail sentence and 36 months probation.

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The probation report noted the following favorable factors: (1) defendant
indicated a willingness to comply with terms of probation; (2) imprisonment will
seriously affect defendant and his dependents; (3) a felony conviction will adversely
affect defendant’s life, and (4) defendant has shown remorse. The report also listed as a
mitigating factor that defendant voluntarily acknowledged wrongdoing at an early stage
of the criminal process.
The report listed the following aggravating facts: (1) the crime involved threat of
great bodily harm; (2) the crime was carried out with planning, sophistication or
professionalism; (3) defendant engaged in violent conduct, indicating a serious danger to
society.
Pending further guidance from our Supreme Court, we remand this matter for
resentencing, as that is the appropriate remedy in this case for erroneous imposition of the
upper term. (See, e.g., People v. Quinones (1988) 202 Cal.App.3d 1154, 1159-1160;
People v. Young (1983) 146 Cal.App.3d 729, 737.) We reverse as to sentencing alone,
for reconsideration of the appropriate term on the gun-use enhancement appended to
count 1.

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9. Disposition
We affirm the judgment of conviction but reverse the sentence as to the gun-use
enhancement appended to count 1, and remand this case to the superior court for
resentencing, consistent with the requirements of Cunningham.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Ramirez
P. J.
s/King
J.

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