People v. Amons

• Decision Date: 11 January 2005
• Docket Number: No. A105374.,A105374.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Terry D. AMONS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

22 Cal.Rptr.3d 908

125 Cal.App.4th 855

The PEOPLE, Plaintiff and Respondent, v. Terry D. AMONS, Defendant and Appellant.

No. A105374.

Court of Appeal, First District, Division 1.

January 11, 2005.

Review Denied April 20, 2005.^*

Dirck Newbury, Under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Gerald A. Engler, Assistant Attorneys General, Eric D. Share, Kelly M. Croxton, Deputy Attorneys General, for Plaintiff and Respondent.

SWAGER, J.

We conclude in this appeal that the new sentencing rules announced in Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely), do not apply retroactively upon revocation of defendant's probation to a final sentence that was previously imposed but suspended during his probationary period.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On August 16, 1999, defendant entered a no contest plea to a charge of assault by means of force likely to cause great bodily injury (Pen.Code, § 245, subd. (a)(1)),¹ and admitted an enhancement for personal infliction of great bodily injury (§ 12022.7, subd. (a)).² On October 4, 1999, the trial court imposed a four-year upper term for the assault conviction, based upon aggravating circumstances which related to the offense and defendant's recidivism. An additional three-year term for the enhancement was also imposed, for a total state prison sentence of seven years. Execution of the sentence was suspended, and defendant was placed on probation for four years. After a series of probation violations, defendant's probation was finally revoked on January 22, 2004, and the trial court ordered into execution the previously imposed seven-year state prison sentence. (§ 1203.2, subd. (c).)

DISCUSSION

The sole contention made by defendant on appeal is that the trial court violated the principles announced in the recent United States Supreme Court decision in Blakely, supra, 124 S.Ct. 2531, by imposing the upper term based on findings of "circumstances in aggravation" that "were not subject to jury determination beyond reasonable doubt" or admitted as part of his plea. Defendant asserts that the "new rule of decisional law" articulated in Blakely "must be applied to the instant case," which was "still pending" when the opinion was issued. He further argues that under Blakely the "statutory maximum" sentence which cannot be exceeded without a finding by the jury and proof beyond a reasonable doubt is limited to the middle term. Therefore, he complains that the upper term imposed upon him based upon findings by the trial court violated his constitutional rights as defined in Blakely.³

In Blakely, the United States Supreme Court revisited and expanded the scope of the rule previously established in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435, (Apprendi), 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.'" (Blakely, supra, 124 S.Ct. 2531, 2536, italics added.) At issue in Blakely was whether the determinate sentencing procedure followed by courts in the State of Washington deprived the petitioner of his "federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence." (Ibid.) At the sentencing hearing in Blakely an "exceptional sentence" of 90 months was imposed under the determinate sentencing procedure followed by courts in the State of Washington, based upon the trial judge's finding that the petitioner used "deliberate cruelty" in the commission of the offense, which was one of the statutorily enumerated grounds for departure from the standard sentencing range. (Id., at p. 2535.)

The court in Blakely operated from the conclusion reached in its prior decisions in Apprendi, supra, 530 U.S. 466, 120 S.Ct. 2348, and Ring v. Arizona (2002) 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556,⁴ that a defendant's constitutional rights have been violated when a judge "imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding. Apprendi, supra, at 491-497 ; Ring, supra, at 603-609 ." (Blakely, supra, 124 S.Ct. 2531, 2537; see also United States v. Croxford (D.Utah 2004) 324 F.Supp.2d 1230, 1235-1236.) The notion advocated by the State in Blakely "that there was no Apprendi violation because the relevant `statutory maximum' is not 53 months, but the 10-year maximum for class B felonies in § 9A.20.021(1)(b)," and "no exceptional sentence may exceed that limit," was rejected as contrary to those "clear" precedents. (Blakely, supra, at p. 2537.) Instead, the court defined "the `statutory maximum' for Apprendi purposes [as] the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment,' [citation], and the judge exceeds his proper authority." (Ibid; see also United States v. Ameline (9th Cir.2004) 376 F.3d 967, 975.)

The court then concluded: "The judge in this case could not have imposed the exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea. Those facts alone were insufficient because, as the Washington Supreme Court has explained, `[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense,' [citation], which in this case included the elements of second-degree kidnapping and the use of a firearm, see §§ 9.94A.320, 9.94A.310(3)(b). Had the judge imposed the 90-month sentence solely on the basis of the plea, he would have been reversed. See § 9.94A.210(4). The `maximum sentence' is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an aggravator)." (Blakely, supra, 124 S.Ct. 2531, 2537-2538, fn. omitted.) "Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact." (Blakely, supra, at p. 2538, fn. omitted.) "Nor does it matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. He cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence." (Ibid., fn. 8.)

We first confront respondent's arguments that defendant "forfeited his claim" of Blakely error by failing to object in the trial court, and that his "appeal is barred as untimely." While we do not find that a defendant forfeits a claim of imposition of an unauthorized sentence under Blakely in the absence of an objection at trial, we agree with respondent that under the circumstances presented by the appeal before us defendant cannot take advantage of the rule announced in Blakely years after his sentence became final.

There is no dispute that the new procedural rules for the conduct of criminal prosecutions announced in Blakely govern all cases still pending on appeal or not yet final when the opinion was issued. (See Griffith v. Kentucky (1987) 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661; People v. Clair (1992) 2 Cal.4th 629, 672, 7 Cal.Rptr.2d 564, 828 P.2d 705; People v. Ashmus (1991) 54 Cal.3d 932, 991, 2 Cal.Rptr.2d 112, 820 P.2d 214; People v. Sisavath (2004) 118 Cal.App.4th 1396, 1400, 13 Cal.Rptr.3d 753; People v. Davis (1997) 57 Cal.App.4th 1404, 1408, fn. 6, 67 Cal.Rptr.2d 748.) "When a decision of [the United States Supreme] Court results in a `new rule,' that rule applies to all criminal cases still pending on direct review." (Schriro v. Summerlin (2004) 542 U.S. 348, 350-352, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442.) This is true whether the new rule is substantive or procedural, and even if it "constitutes a `clear break' with the past." (Griffith v. Kentucky, supra, at p. 328.)

"As to convictions that are already final, however," new procedural rules apply retroactively only in very "limited circumstances." (Schriro v. Summerlin, supra, 124 S.Ct. 2519, 2522.) The rule that prohibits retroactive application of a new law not in existence at the time a conviction became final supports the principle of finality which is essential to the operation of our criminal justice system. (Beard v. Banks (2004) 542 U.S. 406, 412-413, 124 S.Ct. 2504, 2511, 159 L.Ed.2d 494; United States v. Sanchez-Cervantes (9th Cir.2002) 282 F.3d 664, 667.) Thus, "new rules of constitutional law do not generally apply retroactively so as to permit reopening of final convictions...." (People v. Monge (1997) 16 Cal.4th 826, 841, 66 Cal.Rptr.2d 853, 941 P.2d 1121.)

"[W]e give retroactive effect to only a small set of `"watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding.' [Citations.]" (Schriro v. Summerlin, supra, 124 S.Ct. 2519, 2523.) New constitutional rules of criminal procedure are applicable to those cases which have become...