P. v. Mello

Filed 11/30/04 P. v. Mello CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID T. MELLO,
Defendant and Appellant.
D043073
(Super. Ct. No. SCE225670)
APPEAL from a judgment of the Superior Court of San Diego County, William J.
McGrath, Judge. Affirmed in part, reversed in part and remanded.
A jury convicted David T. Mello of three counts of possessing methamphetamine
(meth) (Health & Saf. Code, § 11378; counts 1, 3 & 8), two counts of maintaining a place
where narcotics are sold (Health & Saf. Code, § 11366; counts 2 & 4), two counts of
possessing a firearm (Pen. Code,1 § 12021, subd. (a)(1); counts 5 & 9), one count of
resisting an officer (§ 69; count 6), one count of transporting meth (Health & Saf. Code,
1 All further statutory references are to the Penal Code unless otherwise specified.

-- 1 of 8 --

2
§ 11379, subd. (a); count 7) and one count of evading a peace officer with reckless
driving (Veh. Code, § 2800.1; count 10.)2 The jury found Mello had been armed with a
firearm during the commission of the count 3 offense (§ 12022, subd. (c)). Mello
admitted he had been out on bail during the commission of counts 3 through 9
(§ 12022.1, subd. (b)).
The trial court sentenced Mello to a total prison term of 13 years and 8 months,
consisting of a three-year upper term on count 3, the upper term of five years for the
related firearm enhancement, and two years for the on-bail enhancement, plus a
consecutive eight months (1/3 the midterm) on count 1 and a consecutive year on count 7
(1/3 the midterm) plus two years for the related on-bail enhancement.
Mello appeals, contending his upper term sentences must be vacated pursuant to
the United States Supreme Court's recent decision in Blakely v. Washington (2004) 542
U.S. ___ [124 S.Ct. 2531; 159 L.Ed.2d 403] (Blakely). We conclude resentencing in
light of Blakely is required.
FACTS
This case arises out of three consolidated informations charging Mello with crimes
stemming from three incidents in 2002: (1) a search of his home in June; (2) searches of
his home and business in October; and (3) a car chase followed by searches of his home
and business in December.
2 The jury found Mello not guilty of an alleged battery upon a peace officer under
count 11.

-- 2 of 8 --

3
During the June 2002 search, San Diego Sheriff's deputies found 206 grams of
meth, a large number of plastic baggies, a digital scale, and around $12,000 in cash. The
searches in October revealed pay-owe sheets which seemed to be related to the
distribution of drugs, around $12,000 in cash, meth, marijuana, valium pills, hypodermic
needles, a digital scale, two rifles, several handguns, and ammunition.
The December car chase ensued after Mello was pulled over by sheriff's deputies
and became agitated when the deputies noticed a brown paper bag on his car floor while
detaining his passenger to process an outstanding warrant. When Mello was
subsequently stopped, arrested and searched, deputies found 1.19 grams of meth in his
pocket but the brown bag from the car was gone. Deputies later found an empty brown
paper bag next to three plastic bags containing about 112 grams of meth on the shoulder
area of the highway where the chase had taken place. When Mello's home and office
were then searched, deputies found two handguns, .34 grams of meth, packaging
materials, and scales.
A jury trial followed, during which Mello was convicted of counts 1 through 10.
At sentencing, the judge imposed upper terms on all the counts and an upper term on the
firearm enhancement, stating:
"I have considered as to count 3 both factors in mitigation and in
aggravation as are set forth in the probation report. [¶] Those in
mitigation that I believe apply would be one only, and that is that the
defendant did satisfactorily complete his parole on prior cases. [¶]
In aggravation, the planning and sophistication and professionalism
of these crimes, or this crime, including drugs, guns, lots of money,
and surveillance cameras are substantial circumstances in
aggravation as is [California Rules of Court Rule] 4.421(b)(2), he
does have numerous prior convictions, many of which are felonies.

-- 3 of 8 --

4
[¶] As to count 3 therefore, the court finds the circumstances in
aggravation outweigh those in mitigation and the court will impose
the upper term. [¶] As to all remaining counts, the court has
performed the same analysis and finds that the upper term would be
appropriate, although all remaining counts will either be subject to
one-third the midterm term or 654 treatment."
DISCUSSION
The United States Supreme Court recently held in Blakely, supra, 124 S.Ct. 2531,
that a trial court may not increase a defendant's sentence beyond the standard range for
the charged offense based on the court's own factual findings because such additional
factfinding violates the defendant's Sixth Amendment right to trial by jury. Mello
contends that pursuant to Blakely, the trial court's imposition of upper terms on counts 2,
3, 4, 5, 6, 8 and 9 must be vacated, as well as the imposition of the upper term on the
firearm enhancement for count 3. Mello does not contest the imposition of consecutive
sentences on counts 1, 3 and 7.3
The attorney general responds that Mello has waived any claim of sentencing error
because he failed to challenge the propriety of the upper terms in the proceedings below,
and that even if Blakely applies, any error was harmless because at least one of the
aggravating factors relied upon by the court was proper.
3 The issue of whether Blakely has any effect on a trial court's imposition of
consecutive sentences is pending before our Supreme Court. (People v. Black (review
granted July 28, 2004, S126182) (Black).)

-- 4 of 8 --

5
I
WAIVER
With regard to the waiver issue, this court recently rejected similar arguments
brought by the attorney general as brought here. (People v. George (2004) 122
Cal.App.4th 419 (George); People v. Lemus (2004) 122 Cal.App.4th 614 (Lemus).) In
Lemus, we pointed out that prior to Blakely it was well established in California law that
there was no constitutional right to a jury trial in connection with the imposition of an
upper term sentence. Thus, any argument to the contrary made by Mello at the time of
sentencing undoubtedly would have been rejected because Blakely had not yet been
decided.
Further, like the appellant in Lemus, Mello vigorously advocated for a lesser
sentence at the trial level. In his statement of mitigation, Mello urged the court to view
his actions in light of his many personal problems, including his drug addiction, the
recent loss of his home, vehicles, and personal property, and the fact that he was
embroiled in a custody battle over his son. "Under the circumstances, it would be
unreasonable to find that [Mello] abandoned a constitutional challenge of which he was
unaware." (Lemus, supra, 122 Cal.App.4th at p. 620.)
II
APPLICATION OF BLAKELY
Mello argues the trial court imposed upper terms based on its own findings that 1)
his crimes involved planning, sophistication, and professionalism, and 2) that Mello had
numerous prior convictions. Whether Blakely precludes a trial court from finding

-- 5 of 8 --

6
aggravating facts independent of a jury is an issue currently under review by the
California Supreme Court in People v. Towne (review granted July 14, 2004, S125677)
and Black, supra (review granted July 28, 2004, S126182.) Nevertheless, this court has
analyzed the issue in George and Lemus and concluded that "[b]ecause the maximum
penalty the court can impose under California law without making additional factual
findings is the middle term, Blakely applies.[4] Thus, the question becomes whether the
trial court could properly rely on any of the cited factors as the basis for its decision to
impose the upper term without violating Blakely." (George, supra, 122 Cal.App.4th at p.
425; Lemus, supra, 122 Cal.App.4th at p. 621.)
"In accordance with Blakely, the Constitution requires a jury trial on any fact that
'the law makes essential to the punishment' other than the fact of the defendant's prior
conviction. [Citation.]" (George, supra, 122 Cal.App.4th at p. 426; Lemus, supra, 122
Cal.App.4th at p. 621.) Applying that standard to this case, it is clear the court was
entitled to rely upon Mello's prior convictions for the selection of the upper term
sentence,5 but was not at liberty to find Mello's crimes involved planning, sophistication
and professionalism. Because at least one of the trial court's aggravating factors would
4 We note the differing viewpoint of our colleagues regarding the applicability of
Blakely to California's determinate sentencing structure as set forth in the majority of
People v. Wagener (2004) 123 Cal.App.4th 424, and respectfully disagree for the reasons
set forth in George and Lemus.
5 Mello's argument that this factor was improper because he had only been arrested
twice previously and that one of the cases was dismissed is not supported by the record.
The probation report reflects that at the time Mello was charged in this case, he had been
convicted of four misdemeanors and three felonies.

-- 6 of 8 --

7
necessitate a jury trial under the holding of Blakely, we must evaluate whether the error
was harmless.
The attorney general argues the trial court could have imposed the upper term
solely on the finding that Mello had numerous prior convictions and thus any error
regarding the remaining aggravating factor was harmless. Under California law, it is true
that the finding of a single aggravating factor is sufficient to impose the upper term, so
long as that factor outweighs any circumstances in mitigation. (People v. Cruz (1995) 38
Cal.App.4th 427, 433.) "However, assuming without deciding, that resentencing is only
required if it 'is not reasonably probable that a more favorable sentence would have been
imposed in the absence of error [citations],' we cannot conclude that the elimination of
[one of only two aggravating] factors would not have made a difference in the court's
sentencing decision here." (George, supra, 122 Cal.App.4th at pp. 426-427 citing People
v. Osband (1996) 13 Cal.4th 622, 728.)
Accordingly, the trial court's imposition of upper term sentences must be vacated
and the case remanded for resentencing.
DISPOSITION
The judgment is reversed as to the sentence on counts 2, 3, 4, 5, 6, 8 and 9, and the
matter is remanded for resentencing in a manner consistent with the views expressed in
this opinion. In all other respects, the judgment is affirmed.

-- 7 of 8 --

8
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
McINTYRE, J.

-- 8 of 8 --