People v. Vu

• Decision Date: 09 December 2004
• Docket Number: No. G033583.,G033583.
• Citation: 124 Cal.App.4th 1060,21 Cal.Rptr.3d 844
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vinh Quang VU, Defendant and Appellant.

21 Cal.Rptr.3d 844

124 Cal.App.4th 1060

The PEOPLE, Plaintiff and Respondent, v. Vinh Quang VU, Defendant and Appellant.

No. G033583.

Court of Appeal, Fourth District, Division 3.

December 9, 2004.

Review Granted February 16, 2005.

Kevin D. Sheehy, under appointment by the Court of Appeal, Santa Monica, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

O'LEARY, Acting P.J.

Vinh Quang Vu appeals from a judgment after a jury convicted him of unlawfully taking a vehicle, forgery, theft of an access card with the intent to defraud, and second degree commercial burglary. Relying on Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531 (Blakely), Vu argues the trial court erred by imposing the upper term of three years on the unlawful taking count. Specifically, he claims: (1) the jury, and not the court, should have found the aggravating circumstances supporting the upper term; (2) the court applied the incorrect standard of proof in finding the aggravating circumstances; (3) prior conviction facts should be found by the jury beyond a reasonable doubt; and (4) the jury, and not the court, should perform the "qualitative" weighing of aggravating and mitigating circumstances. We find some of his contentions have merit.

FACTS

Vu went to Irvine BMW and asked an employee if he could test drive a car. The employee told Vu to go to the sales department. Vu went to the service area, got inside a BMW, and drove away.

A couple days later, Robyn Lee was at Kinko's making copies when she put her purse on the floor. After helping an older gentleman, she went to get money from her purse and her wallet was gone.

Later that day, Vu went to Best Buy to purchase stereo equipment for a BMW, a home stereo, and a big screen television. After the sales clerk totaled the purchase price, Vu gave him a credit card with the name "Robyn" on it. The clerk asked for identification, but Vu said he did not have any. Police officers arrived and took Vu outside. Vu had Lee's credit cards and a key to a BMW. Officers found the BMW and determined it was stolen. Lee's wallet was inside the car.

An information charged Vu with unlawfully taking a vehicle (Veh.Code, § 10851, subd. (a)) (count 1), forgery (Pen.Code, § 470, subds.(a) & (d)) (count 2), theft of an access card with the intent to defraud (Pen.Code, § 484e, subd. (a)) (count 3), and second degree commercial burglary (Pen.Code, §§ 459, 460, subd. (b)) (count 4). The jury convicted Vu on all counts.

After having read and considered the probation report, the trial court denied Vu probation. For purposes of selecting the appropriate term of imprisonment, the court found there were six aggravating circumstances and one mitigating circumstance. The court found the aggravating circumstances outweighed the mitigating circumstance and selected the upper term of three years on count 1. The court's complete sentence was as follows: the upper term of three years on count 1; the middle term of two years on count 2; the middle term of two years on count 3; and the middle term of two years on count 4. The court stayed the sentences on counts 2 and 4 pursuant to Penal Code section 654, and ran the sentence on count 3 concurrently with count 1.

DISCUSSION

In Blakely, the defendant pleaded guilty to kidnapping. The factual admissions in the defendant's plea, standing alone, supported a maximum sentence of 53 months. Pursuant to state law, the trial court imposed an "`exceptional'" sentence of 90 months after determining the defendant acted with "`deliberate cruelty.'" (Blakely, supra, 542 U.S. at p. 298, 124 S.Ct. at p. 2534.) Citing Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi), the Supreme Court held the defendant's "`exceptional'" sentence violated his Sixth Amendment right to a jury trial because the facts supporting the sentence were neither admitted by the defendant nor found by the jury. (Blakely, supra, 542 U.S. at pp. 301-305, 124 S.Ct. at pp. 2536-2538.) The court applied the following rule first articulated in Apprendi: "`Other 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.'" (Id. at p. 301, 124 S.Ct. at p. 2536, italics added.) The court explained "`statutory maximum'" for Apprendi purposes means "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Id. at p. 303, 124 S.Ct. at p. 2537.) The court stated, "[i]n 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.)

In Blakely, the United States Supreme Court invalidated the defendant's sentence under Washington law. (Blakely, supra, 542 U.S. at p. 305, fn. 9, 124 S.Ct. at p. 2538, fn. 9.) The California Supreme Court has granted review in two cases in which it is considering the applicability of Blakely to California's determinate sentencing laws. (People v. Towne, review granted July 14, 2004, S125677; People v. Black, review granted July 28, 2004, S126182.) Pending resolution of the issue by the California Supreme Court, we must undertake a determination of whether Blakely applies here.

WAIVER

The Attorney General contends Vu did not raise the Blakely issue below, and therefore, it is waived. Vu concedes he did not raise this issue at sentencing, but contends the issue is not forfeited. We agree with Vu on this issue.

"Because of the constitutional implications of the error at issue, we question whether the forfeiture doctrine applies at all. [Citation.] Furthermore, there is a general exception to this rule where an objection would have been futile. [Citation.] We have no doubt that, at the time of the sentencing hearing in this case, an objection that the jury rather than the trial court must find aggravating facts would have been futile. [Citations.] In any event, we have discretion to consider issues that have not been formally preserved for review." (People v. Butler (2004) 122 Cal.App.4th 910, 918-919, 19 Cal.Rptr.3d 310, petn. for review pending, petn. filed Nov. 3, 2004 (Butler); see People v. Vera (1997) 15 Cal.4th 269, 276-277, 62 Cal.Rptr.2d 754, 934 P.2d 1279; People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5, 161 Cal.Rptr. 762, 605 P.2d 401.) As with the defendant in Butler, because Vu was sentenced before Blakely was decided, we cannot say he knowingly and intelligently waived his right to a jury trial.

UPPER TERM

Penal Code section 1170, subdivision (b), states, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (Italics added.) California Rules of Court, rule 4.420(a) provides, "When a sentence of imprisonment is imposed, or the execution of a sentence of imprisonment is ordered suspended, the sentencing judge shall select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170(b) and these rules. The middle term shall be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation." (Italics added.) California Rules of Court, rule 4.420(b) states, "Circumstances in aggravation and mitigation shall be established by a preponderance of the evidence. Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation." Judicial Council "rules have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions." (In re Richard S. (1991) 54 Cal.3d 857, 863, 2 Cal.Rptr.2d 2, 819 P.2d 843; see also People v. Wright (1982) 30 Cal.3d 705, 712, 180 Cal.Rptr. 196, 639 P.2d 267.) Count 1, unlawful taking of a vehicle, when sentenced as a felony, is punishable by a prison term of "16 months, or two or three years[.]" (Pen.Code, § 18; Veh.Code, § 10851, subd. (a).)

Relying on Blakely, Vu argues the trial court erred when it imposed the upper term of three years on count 1 because the jury, and not the court, should have found the facts supporting the upper term beyond a reasonable doubt. We agree in part.

Under California law, the maximum sentence the trial court may impose without any additional findings is the middle term. (Pen.Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420(a).) Blakely holds that, "`Other 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, 542 U.S. at p. 301, 124 S.Ct. at p. 2536.) The Supreme Court defined "`statutory maximum'" 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." (Id. at p. 303, 124 S.Ct. at p. 2537.) "[W]hen 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 alone does not authorize the sentence,' as required to comply with constitutional principles. [Citation.] ... Because the maximum penalty the court can impose under California law without making...