P. v. Hughes

Filed 6/19/07 P. v. Hughes CA1/1
Opinion on remand from United States 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT S. HUGHES,
Defendant and Appellant.
A105756
(Sonoma County
Super. Ct. No. MCR429522)
Defendant appealed from a judgment following pleas of guilty and imposition of a
ten-year state prison term: the upper term of eight years on count one, and a two-year
consecutive term on count two. His counsel raised no issues and asked this court for an
independent review of the record to determine whether there are any issues that would, if
resolved favorably to appellant, result in reversal or modification of the judgment.
(People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.)
Upon review of the record we found no arguable issues, although we ordered an
amendment of the abstract of judgment to require AIDS testing. We subsequently
granted defendant’s petition for rehearing to consider the impact of the decision in
Blakely v. Washington (2004) 542 U.S. 296 (Blakely), upon defendant’s sentence. We
concluded that under Blakely the upper term imposed upon defendant must be vacated,
but otherwise affirmed the judgment as amended. The California Supreme Court then
transferred the case back to this Court for reconsideration in light of People v. Black
(2005) 35 Cal.4th 1238 (Black). In accordance with the opinion in Black we found no
error in the imposition of upper and consecutive terms under the California Determinate

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Sentencing Law (DSL), and therefore vacated our prior opinion and affirmed the
judgment of the trial court.
Then came Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127
S.Ct. 856] (Cunningham), in which the United States Supreme Court reversed the Black
decision, and concluded, “Contrary to the Black court’s holding, our decisions from
Apprendi[1] to Booker[2] point to the middle term specified in California’s statutes, not the
upper term, as the relevant statutory maximum. Because the DSL authorizes the judge,
not the jury, to find the facts permitting an upper term sentence, the system cannot
withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra,
166 L.Ed.2d 856, 876.) This case has now been remanded to us again for further
consideration in light of Cunningham.
DISCUSSION
In accordance with the decision in Cunningham, we revert to our (pre-Black)
conclusion that imposition of an upper term upon defendant was error, and turn to the
issue of prejudice. We conclude that any sentencing error under Blakely is not a
structural defect that demands automatic reversal. (See People v. Epps (2001) 25 Cal.4th
19, 29; People v. Vera (1997) 15 Cal.4th 269, 278; People v. Marshall (1996) 13 Cal.4th
799, 851–852.) Rather, we follow the federal standard of review of constitutional errors
(Chapman v. California (1967) 386 U.S. 18, 24), and must reverse the sentence unless it
appears beyond a reasonable doubt that the assumed error did not contribute to the
judgment. (People v. Neal (2003) 31 Cal.4th 63, 86; People v. Carter (2003) 30 Cal.4th
1166, 1221–1222; People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
All of the sentencing factors relied upon by the trial court to impose the upper
term relate to the current offenses: a threat of great bodily harm, actions indicative of
sophisticated planning, isolation of the victim, escalating seriousness of the sexual abuse
over time, and a high degree of callousness. The upper term was not based upon any
1 Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
2 United States v. Booker (2005) 543 U.S. 220 (Booker).

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aggravating circumstances that fall within the recognized exception from the right to a
jury trial articulated in Apprendi for an increase in penalty due to the defendant’s prior
convictions or other associated recidivist conduct. (Apprendi, supra, 530 U.S. 466, 490;
People v. Kelii (1999) 21 Cal.4th 452, 455; People v. Taylor (2004) 118 Cal.App.4th 11,
28; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 831; People v. Lee
(2003) 111 Cal.App.4th 1310, 1314; People v. Belmares (2003) 106 Cal.App.4th 19, 27;
People v. Thomas (2001) 91 Cal.App.4th 212, 222–223; Thompson v. Superior Court
(2001) 91 Cal.App.4th 144, 154.) Thus, we cannot find that the Blakely error did not
contribute to the judgment. The denial of the right to a jury trial and findings on the
aggravating circumstances which resulted in the imposition of the upper term on count
one must be considered prejudicial to defendant.
The imposition of a consecutive term on count two, however, did not violate
Blakely or Cunningham. We find nothing in the trial court’s exercise of sentencing
discretion to select a consecutive subordinate term of imprisonment that violates the
precepts of Blakely. Cunningham dealt only with the imposition of upper terms under the
DSL, and expressed no opinion on the validity of the California sentencing scheme for
selection of consecutive terms. The critical factor that differentiates the imposition of
consecutive terms from upper terms in the DSL is the absence of any presumptive
statutory maximum for the former. The more lenient concurrent term is not the specified
presumptive or standard maximum sentence. Penal Code section 6693 provides that
when a defendant “is convicted of two or more crimes, whether in the same proceeding or
court or in different proceedings or courts,” the sentencing court “shall direct whether the
terms of imprisonment or any of them to which he or she is sentenced shall run
concurrently or consecutively.” (See also People v. Downey (2000) 82 Cal.App.4th 899,
912–913.) Section 669 thus imposes a duty upon the trial court to determine whether the
terms of imprisonment for multiple offenses are to be served concurrently or
consecutively, but the choice of a consecutive or concurrent term is entirely discretionary
3 All further statutory references are to the Penal Code.

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with the trial court based upon consideration of the sentencing criteria set forth as
guidelines in California Rules of Court, rule 4.425.4 (In re Hoddinott (1996) 12 Cal.4th
992, 1000; People v. Jenkins (1995) 10 Cal.4th 234, 255–256; In re Calhoun (1976) 17
Cal.3d 75, 80–81; People v. Bradford (1976) 17 Cal.3d 8, 20; People v. Shaw (2004) 122
Cal.App.4th 453, 458; People v. Coelho (2001) 89 Cal.App.4th 861, 886; People v.
Alvarado (2001) 87 Cal.App.4th 178, 194; People v. Lepe (1987) 195 Cal.App.3d 1347,
1350.) “[T]he provisions of rule [4.425] are merely ‘[c]riteria affecting the decision to
impose consecutive rather than concurrent sentences . . . .’ They are guidelines, not rigid
rules courts are bound to apply in every case . . . .” (People v. Calderon (1993) 20
Cal.App.4th 82, 86–87.)
“While there is a statutory presumption in favor of the middle term as the sentence
for an offense (§ 1170, subd. (b)), there is no comparable statutory presumption in favor
of concurrent rather than consecutive sentences for multiple offenses except where
consecutive sentencing is statutorily required. The trial court is required to determine
whether a sentence shall be consecutive or concurrent but is not required to presume in
favor of concurrent sentencing. (§§ 669, 1170.1, subd. (a); rule [4.]433(c)(3).)” (People
v. Reeder (1984) 152 Cal.App.3d 900, 923.) The sentencing rules create a statutory
presumption in favor of the middle term, but no comparable statutory presumption exists
in favor of either concurrent or consecutive sentences for multiple offenses. (Id. at p.
923.) Therefore, a consecutive term does not represent a departure from any standard or
presumptive sentencing range. Either a consecutive or concurrent term is within the trial
court’s discretion and the permissible statutory range of punishment if the defendant has
been found guilty of multiple crimes by the jury.
The sentencing court is also not required to make an additional finding of fact as a
prerequisite to selecting the more severe punishment of a consecutive sentence. The jury
verdict, not any additional necessary finding of fact by the trial court, justifies the
imposition of either a concurrent or consecutive term at the trial court’s discretion.
4 All further references to rules are to the California Rules of Court.

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(People v. Shaw, supra, 122 Cal.App.4th 453, 459.) The decision to select a consecutive
sentence is only made once the accused has been found beyond a reasonable doubt by the
jury to have committed two or more offenses in compliance with the Sixth Amendment
right to a jury trial under Blakely, supra, 542 U.S. 296. A consecutive term imposed
under California law is a discretionary sentence choice that does not increase the penalty
beyond the prescribed statutory maximum, and is not tantamount to an Apprendi
enhancement or a Blakely exceptional sentence. (See People v. McPherson (2001) 86
Cal.App.4th 527, 531–532; People v. Farr (1997) 54 Cal.App.4th 835, 843.) The court
in Cunningham reinforced the notion previously expressed in Booker that to remedy
constitutionally flawed sentencing systems states may choose to “permit judges genuinely
‘to exercise broad discretion . . . within a statutory range,’ which, ‘everyone agrees,’
encounters no Sixth Amendment shoal. Booker, 543 U.S., at 233.” (Cunningham, supra,
166 L.Ed.2d 856, 876–877, fn. omitted.) The DSL scheme for imposition of consecutive
terms provides the sentencing courts with the kind of genuine discretion to select a term
within a relevant statutory range that was given constitutional endorsement in Booker and
Cunningham. The consecutive sentence imposed upon defendant does not violate
Blakely or Cunningham.
DISPOSITION
Accordingly, the upper term sentence of eight years imposed upon count one is
vacated and the case is remanded to the trial court for the limited purpose of conducting
sentencing proceedings in accordance with the requirements of Blakely and Cunningham.
In all other respects the judgment, as previously amended, is affirmed.
__________________________________
Swager, J.
We concur:
__________________________________
Marchiano, P. J.
__________________________________
Margulies, J.

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