P. v. Sandoval

Filed 3/15/05 P. v. Sandoval 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
JOSE RAMON SANDOVAL,
Defendant and Appellant.
D043748
(Super. Ct. No. SCN132990)
APPEAL from a judgment of the Superior Court of San Diego County, K. Michael
Kirkman, Judge. Affirmed in part and reversed in part.
Jose Ramon Sandoval entered a negotiated guilty plea to forcible rape (Pen. Code,
§ 261, subd. (a)(2))1 and admitted personally using a deadly weapon. (§ 12022.3, subd.
(a).) The court denied a motion to withdraw the guilty plea and sentenced him to prison
for 12 years: the eight-year upper term for rape enhanced by the four-year middle term
1 All statutory references are to the Penal Code.

-- 1 of 9 --

2
for weapon use. The court issued a certificate of probable cause. (Cal. Rules of Court,
rule 31(d).)2 Sandoval contends the trial court erred in imposing the upper term. (See
Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531] (Blakely).)
FACTS
On August 13, 2001, Sandoval was living in Vista with his common law wife. His
wife's cousin lived in the garage. Viewing the record in the light most favorable to the
judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred.
Holding a knife, Sandoval entered the garage and forced his wife's cousin to engage in
sexual intercourse with him. Sandoval testified that he and the alleged victim kissed
consensually in the garage, but that they did not engage in sexual intercourse.
DISCUSSION
At the sentencing hearing, the trial court stated no factors in mitigation and six
factors in aggravation: (1) victim vulnerability (rule 4.421(a)(3)); (2) Sandoval's crimes
are numerous and of increasing seriousness (rule 4.421(b)(2)); (3) he has served prior
prison terms (rule 4.421(b)(3)); (4) performance on probation has been unsatisfactory
(rule 4.421(b)(5)); (5) Sandoval fled to avoid prosecution (rule 4.408(a)); and (6)
planning and some level of sophistication was involved in the crime (rule 4.421(a)(8)).
In Blakely, the United States Supreme Court held that " '[o]ther 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.' "
2 All rules references are to the California Rules of Court.

-- 2 of 9 --

3
(Blakely, supra, 124 S.Ct. at p. 2536, quoting Apprendi v. New Jersey (2000) 530 U.S.
466, 490 (Apprendi).) The question of whether Blakely precludes a trial court from
making findings on aggravating facts in support of an upper term sentence is currently
under review by the California Supreme Court. ( E.g., People v. Towne, review granted
July 14, 2004, S125677.) Pending resolution of the issue by the high court, we determine
whether Blakely applies to the situation presented here.
Relying on People v. Scott (1994) 9 Cal.4th 331, the People contend Sandoval did
not object in the trial court and therefore waived his right to raise any challenge to the
upper term on appeal. In Scott, the Supreme Court held that to raise a sentencing issue on
appeal, objection in the trial court is required in order to facilitate the detection and
prompt correction of error, thus reducing the number of appellant claims and preserving
judicial resources. (Id. at pp. 351, 353.) Common sense does not support application of
Scott's waiver rule to the novel principle expressed in Blakely. Before Blakely, there
were no published cases hinting that a jury determination and the reasonable doubt
standard were applicable to factors in aggravation relied on during sentencing. It is not
reasonable to treat failure to object on a ground that does not yet exist as a waiver to
challenging that ground on appeal. We thus consider the merits of Sandoval's claim.
In California, the determinate sentencing law requires the trial court to impose the
middle term unless it finds, by a preponderance of the evidence, that the circumstances in
aggravation outweigh the circumstances in mitigation. (§ 1170, subd. (b); rule 4.420(c),
(d).) Whether the trial court can properly impose the statutory maximum (or upper term)
for a particular crime may depend on facts that are not resolved in the jury verdict or

-- 3 of 9 --

4
admitted by the defendant, the standard expressed in Blakely. (Blakely, supra, 124 S.Ct.
at p. 2537l; see Apprendi, supra, at pp. 491-497 [state hate crime statute authorizing the
imposition of an enhanced sentence based on a judge's finding of certain facts by a
preponderance of the evidence violated the due process clause].) As explained in
Blakely, when the judge's authority to impose a higher sentence depends on the finding of
one or more additional facts, "it remains the case that the jury's verdict [or a guilty plea]
alone does not authorize the sentence," as required to comply with constitutional
principles. (Blakely, supra, 124 S.Ct. at pp. 2538-2539.) Thus, the question is whether
the trial court properly relied on the cited factors as the basis for its decision to impose
the upper term.
Here, the trial court stated six aggravating factors as the basis for its decision to
impose the upper term: (1) the victim's vulnerability; (2) numerous crimes of increasing
seriousness; (3) serving prior prison terms; (4) unsatisfactory performance on probation;
(5) fleeing to avoid prosecution; and (6) planning and sophistication. The People do not
contest that the factual determinations of (1) the victim's vulnerability and (6) planning
and sophistication, go beyond the guilty plea and weapon-use admission and these are
factual questions not within the guilty plea or weapon-use admission.
Applying the Blakely standard here, we conclude that the trial court was
constitutionally entitled to rely on the finding that Sandoval had served prior prison terms
as a basis for imposing an upper term sentence. Serving prior prison terms can be
established by a review of the court records relating to the prior offenses. Serving prior
prison terms does "not [in any way] relate to the commission of the offense, but goes to

-- 4 of 9 --

5
the punishment only . . . ." (Almendarez-Torres v. U.S. (1998) 523 U.S. 224, 244.)
Because the finding that Sandoval had served prior prison terms arose out of the prior
convictions, we conclude that constitutional considerations do not require this matter be
tried by a jury. (See Apprendi, supra, 530 U.S. at p. 488; see also Jones v. United States
(1999) 526 U.S. 227, 233.) Thus, in accordance with the analysis of Blakely, the trial
court was not required to afford Sandoval a jury trial before relying on this factor as an
aggravating factor supporting imposition of the upper term. However, the trial court also
found the crime aggravated by the victim's vulnerability, sophistication and planning, and
Sandoval fleeing to Mexico after the crime to evade prosecution, factors Blakely requires
be found true by a jury beyond a reasonable doubt.
The attorney general points out the propriety of a single factor as a basis for
imposing an upper term sentence is sufficient to withstand Sandoval's constitutional
challenge to the sentence. (Rule 4.420(b); People v. Osband (1996) 13 Cal.4th 622, 728,
citing People v. Castellano (1983) 140 Cal.App.3d 608, 614-615.) Further, the probation
officer contended here that there were no mitigating circumstances, a contention with
which the court implicitly agreed. However, because denial of a jury trial is
constitutional error, we must reverse unless the error is harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18.) We cannot conclude consideration
of the factors Blakely require to be found true by the jury was harmless beyond a
reasonable doubt.

-- 5 of 9 --

6
DISPOSITION
The conviction is affirmed. The sentence is reversed and the matter is remanded
for resentencing.
McCONNELL, P. J.
I CONCUR:
McDONALD, J.

-- 6 of 9 --

1
IRION, J., Dissenting.
In this case involving a serious crime of violence, forcible rape, with an admitted
weapon use, the majority concludes that although the trial court was entitled to rely on
Sandoval's prior convictions in aggravating his sentence, it constitutionally erred in its
consideration of "the victim's vulnerability"; and Sandoval's "numerous crimes crimes of
increasing seriousness"; "serving prior prison terms"; "unsatisfactory performance on
probation"; "fleeing to avoid prosecution"; and "planning and sophistication." My
colleagues conclude the court's consideration of these factors should have been presented
to a jury and, therefore, remand for resentencing is required. I disagree.
In my view, all of the aggravating factors relied upon by the sentencing court are
traditional sentencing factors, not elements of the crime or statutory enhancements. As
the sentencing factors were not used to impose a sentence beyond that authorized by the
California sentencing statutes1 for the crime and enhancement admitted by Sandoval,2 no
new offense was created requiring any additional jury determination. (Harris v.
1 Necessarily, I also part company with the majority in that I am persuaded, in large
measure based on legislative history, that the California determinate sentencing law's
tripartite structure is a true sentencing range within which judges may make choices,
using traditional sentencing factors. (Pen. Code, § 1170, subd. (b); compare Sen. Bill
No. 42 (1975-1976 Reg. Sess.) enacted as Stats. 1976, ch. 1139, § 273, operative July 1,
1977' Assem. Amend. to Sen. Bill No. 42 (1977-1978 Reg. Sess.) enacted as Stats. 1977,
ch. 165, § 15, effective June 29, 1977.)
2 Parenthetically, I note Sandoval specially agreed that the court, in sentencing,
could consider his criminal history and the entire factual background of the case.

-- 7 of 9 --

2
United States (2002) 536 U.S. 545, 564-566; United States v. Booker (2005) 543 U.S.
___ [125 S.Ct. 738, 749-750; 160 L.Ed.2d 621]; Almendarez-Torres v. United States
(1998) 523 U.S. 224.) Consequently, I do not view Sandoval's sentence as being
constitutionally proscribed.
Intermediate appellate courts throughout California are divided on whether
Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 25311; 159 L.Ed.2d 403] (Blakely)
nullifies California's tripartite sentencing structure. The issue is now under consideration
by our Supreme Court, with a decision expected shortly. It is difficult to predict with
certainty which way we will ultimately be directed. Because of this, and the clear
language in Harris, I would not now overturn an upper term sentence on a Blakely
analysis. When the California Supreme Court speaks to the issue, I would, if then
appropriate, fashion consistent relief by way of the writ process. Such a procedure would
preserve appellant's right to relief and avoid a possible instance wherein a defendant,
appropriately sentenced to the upper term, secures a lower sentence due to the timing of
final appellate resolution.
Finally, on this record, I would determine the error, if any, to be harmless. Even if
the majority is correct in its analysis of the application of Blakely to upper term
sentences, Sandoval did not have a right to a jury trial on his prior convictions or the
court's use of that factor as a circumstance in aggravation. (Apprendi v. New Jersey
(2000) 530 U.S. 466; Blakely, supra, 542 U.S. ___ [124 S.Ct. 25311; 159 L.Ed.2d 403].)
Under California law, only a single factor is required to impose the upper term. (People
v. Osband (1996) 13 Cal.4th 622, 728-729.) Based on the court's reliance on Sandoval's

-- 8 of 9 --

3
prior convictions as a circumstance in aggravation and its determination there were no
circumstances in mitigation, I would conclude the error, if any, is harmless.
IRION, J.

-- 9 of 9 --