Filed 11/19/07 P. v. Anderson CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. INTHE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY J. ANDERSON, Defendant and Appellant. A114344 (Mendocino County Super. Ct. No. SCUKCRCR0567210) INTRODUCTION Timothy J. Anderson was sentenced to an aggravated term of imprisonment following his plea of guilty to three counts of arson of forest land (Pen. Code, 451, subd. (c) counts 1, 3 and 8) 1 and two counts of arson of an inhabited structure ( 451, subd. (b) counts 5 and 6) and his admission as to each count that he had used a device to accelerate or delay ignition ( 451.1, subd. (a)(5)). Appellant contends imposition of the upper term denied him his rights under the Sixth Amendment as explicated in Cunningham v. California (2007) U.S., 127 S.Ct. 856 (Cunningham), and that the error was prejudicial. We agree that imposition of the upper term violated the Sixth Amendment in this case and so we will remand to the trial court for resentencing. 1 All statutory references are to the Penal Code. All references to rules are to the California Rules of Court. 1
FACTS AND PROCEDURAL BACKGROUND Appellant pleads guilty On September 26, 2005, an amended complaint was filed alleging that appellant had committed 12 counts of arson of forest land ( 451, subd. (c) counts 1-4, 7-14) and two counts of arson of an inhabited structure ( 451, subd. (b) counts 5 and 6.) Each count alleged appellant had used a device to accelerate or delay ignition ( 451.1, subd. (a)(5)). On April 7, 2006, appellant pleaded guilty to three counts of arson of forest land (counts 1, 3, and 8) and two counts of arson of an inhabited structure (counts 5 and 6), and admitted the special allegations attached to each of those counts. The remaining charges were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.) The district attorney summarized the facts when providing a factual basis for the plea: On September 11, 2003, on Mill Creek Road in Mendocino County, a fire occurred. Investigators found the remains of a cigarette and match-head device in the fire s origin. On July 14th, 2004, two roadside fires were reported on Mill Creek Road, and a Toyota pickup with a specific license number was seen entering the area at 2:00 p.m. and leaving at 2:15 p.m. Both fires were caused by ignition devices. On August 5, 2004, two more roadside fires were reported on Mill Creek Road, and the same pickup was seen entering the area. Two incendiary devices consistent with those at the previous fires were found. Investigators determined the truck belonged to appellant and put him under surveillance. On August 20, 2004, investigators followed appellant into an area off Lake Mendocino Drive where there had been past arson activity. Appellant smoked a cigarette with a brown filter. Minutes later, there was a fire that spread to and destroyed a home at 460 Lake Mendocino Drive. The ignition device, a brown cigarette filter, consistent with 2
past fires, was found. In August 2005, appellant was seen entering and leaving an area of three more arson fires. On September 2, 2005, a global positioning system (GPS) tracking device showed that appellant had passed an area where two fires were reported minutes later. On September 9, 2005, investigators interviewed appellant. He admitted setting a fire on July 10, 2003; two fires on August 25, 2003; a fire on September 11, 2003; two fires on July 14, 2004; two fires on August 5, 2004; a fire on August 20, 2004; a fire on August 12, 2005; a fire on August 25, 2005; a fire on August 26, 2005; and two fires on September 2, 2005. 2 He also admitted using the incendiary devices and showed the officers how he had made them. A search of appellant s property yielded cigarettes consistent with the filter types used in the incendiary devices and some other scraps of paper that had been used to create the devices. In addition to the home burned on August 20, 2004, the fire on August 12, 2005 burned a structure belonging to Raymond Saunders at 280 Watson Road. Numerous other lands and structures were destroyed during these fires as well. On June 23, 2006, the court sentenced appellant to a total term of 23 years as follows: the upper term of eight years on count 5, a consecutive sentence of one year eight months on count 6, and one-third midterm sentences of one year four months on each of counts 1, 3 and 8. The court imposed the midterm of four years on special allegation 1 and imposed a one-third midterm consecutive sentence of one year four months on each of the remaining special allegations (3, 5, 6, and 8). Appellant was ordered to pay restitution to the victims in the amount of $135,211.02. Reasons for imposing the upper term In imposing the aggravated term on count 5 (the August 12, 2005 arson of an inhabited structure), the court described the aggravating circumstances: I agree with the 2 Defense counsel disagreed with the summary to the extent that he asserted that appellant had not admitted the fires that were the subjects of counts 5, 11, 12 and 13. However, counsel agreed appellant was pleading guilty to count 5. 3
probation assessment that the crime involved a threat of great bodily harm and damage to personal and private property because again, these fires, they may be small to start out with, but it s certainly unpredictable where they are going to go. The people in the area in which these fires were set certainly were at risk, as well as their personal property. [ ] It does appear to the court that these fires were planned. [ ] The crimes that were involved the fires that did occur involved significant damage both to forestland vegetation and the residential structures of great monetary value. The court also considered the circumstances in mitigation, including that the defendant does not have a prior criminal record. He did voluntarily acknowledge wrongdoing at an early stage. And he may be suffering from a mental condition that could significantly reduce culpability for the crime. As the court recognized, appellant here has no prior criminal convictions. Appellant filed a timely notice of appeal. DISCUSSION I. The Upper Term The law In Cunningham, supra, U.S., 127 S.Ct. 856, the United States Supreme Court, disagreeing with [the California Supreme Court s] decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), held that California s determinate sentencing law (DSL) violat[ed] a defendant s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 805 (Black II). The high court has recognized two exceptions to a defendant s right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. (People v. Sandoval (2007) 41 Cal.4th 825, 836 (Sandoval).) First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury s verdict. (Blakely [v. Washington (2004)] 542 U.S. [296,] 303 [(Blakely)].) Second, the right to jury trial and 4
the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-244.) (Sandoval, supra, 41 Cal.4th at pp. 836-837.) On remand from the United States Supreme Court, the California Supreme Court concluded in Black II, supra, 41 Cal.4th 799, that the defendant did not forfeit the issue by failing to object to his sentence on Sixth Amendment grounds in the trial court ; that imposition of an upper term sentence did not violate defendant s right to a jury trial, because at least one aggravating circumstance was established by means that satisf[ied] Sixth Amendment requirements and thus made him eligible for the upper term ; and that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms. (Id. at pp. 805-806, italics added.) As the court explained in Black II, the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is legally essential to the punishment (Blakely, supra, 542 U.S. at p. 313), that is, to any fact that exposes a defendant to a greater potential sentence than is authorized by the jury s verdict alone (Cunningham, supra, U.S. at p.,127 S.Ct. at p. 863). (Black II, supra, 41 Cal.4th at p. 812; see Rita v. United States (2007) 551 U.S., 127 S.Ct. 2456, 2466; accord, Sandoval, supra, 41 Cal.4th at pp. 838-839.) Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, at p. 813.) By the same reasoning, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it 5
been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Sandoval, supra, 41 Cal.4th at p. 839.) 3 In Sandoval, supra, 41 Cal.App.4th 825, the California Supreme Court concluded that none of the aggravating circumstances cited by the trial court came within the exceptions set forth in Blakely, supra, 542 U.S. 296. The defendant had no prior criminal convictions; all of the aggravating circumstances cited were based upon the facts underlying the crime; none were admitted by the defendant or established by the verdict. Accordingly, the defendant s Sixth Amendment rights were violated by imposition of the upper term. (Sandoval, at pp. 837-838.) In reaching its determination, Sandoval applied a harmless error analysis to the violations, but concluded that the error in the present case was not harmless beyond a reasonable doubt and the case must be remanded for resentencing. (Id. at p. 832; see id at pp. 838-843.) No forfeiture The Attorney General argues that appellant has forfeited his claim by failing to object under Apprendi and Blakely or his right to a jury trial. We disagree. Blakely was issued on June 24, 2004, two years before appellant here was sentenced. However, at the time of sentence, the California Supreme Court had held California s sentencing scheme was constitutional in Black I and the United States Supreme Court had not yet overturned that decision in Cunningham. 4 Consequently, any objection to sentencing on Blakely or Apprendi grounds would have been futile. As recognized in Sandoval, supra, 41 Cal.4th at page 837, footnote 4: An objection in the trial court is not required if it would have been futile. [Citation.] As the Attorney General concedes, our decision in Black I was binding on the lower courts until it was overruled by the high court. [Citation.] Had defendant requested a jury trial on aggravating circumstances, that request clearly would 3 Thus, there is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements. (Sandoval, supra, 41 Cal.4th at p. 838.) 4 Black I was decided on June 20, 2005. Appellant was sentenced on June 23, 2006. Cunningham was issued on January 22, 2007. 6
have been futile, because the trial court would have been required to follow our decision in Black I and deny the request. People v. Hill (2005) 131 Cal.App.4th 1089, 1103, upon which the Attorney General relies, is clearly distinguishable. The defendant in that case was sentenced on July 1, 2004, after Blakely, but well before issuance of Black I. Multiple victims The Attorney General next argues that appellant admitted by his plea that he victimized more than one person and that the court could thus consider the fact of multiple victims as an aggravating factor. We reject this suggestion for two reasons. First, the trial court did not rely on the fact of multiple victims in imposing the upper term. Second, appellant did not admit that count 5 (the count upon which the court imposed the upper term) involved multiple victims and it appears to us that admitting to multiple crimes with different victims does not suffice. Sandoval notes that the multiplevictim aggravating circumstance was deleted from rule 4.421 to avoid the suggestion that the existence of multiple victims is an appropriate aggravating circumstance in cases, such as this one, in which each count involves a single victim. (See Advisory Com. com., Cal Rules of Court, rule 4.421.) (Sandoval, supra, 41 Cal.4th at p. 842, fn. 5.) It may well be that count 5 in fact involved multiple victims, but the record does not establish that fact beyond a reasonable doubt and appellant did not admit it to be so. Prejudice The Attorney General next contends that any error was harmless on the basis that a jury would have found at least one of the aggravating circumstances true beyond a reasonable doubt. As we have stated above, Sandoval, supra, 41 Cal.App.4th 825, recognized that [t]he denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman), as applied in Neder v. United States (1999) 527 U.S. 1. (Sandoval, at p. 838.) Consequently, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it 7
been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Sandoval, supra, 41 Cal.4th at p. 839.) The Attorney General asserts that it is certain that a jury would have found beyond a reasonable doubt that the arson crimes posed a threat of great bodily harm and damage to personal and private property and that they involved significant damage to forestland vegetation and... residential structures of great monetary value. Were the appropriate consideration the cumulative swath of destruction caused by of all of the crimes admitted by appellant, these factors would certainly have been found by a jury beyond a reasonable doubt. However, as appellant points out, we cannot determine that the jury would have found these facts beyond a reasonable doubt with respect to the single count 5, the count upon which the trial court imposed the upper term. As to that count, the record revealed only that on August 12, 2005, appellant admitted setting a fire to a structure and inhabited property located at the intersection of Watson Road and Vichy Springs Road, Mendocino County, California, and that he did so by use of an accelerating device. The district attorney stated that the fire burned a structure... belonging to Raymond Saunders... at 280 Watson Road. Although the district attorney also stated, after cataloguing the numerous fires begun by appellant, that [n]umerous other lands and structures were destroyed during these fires as well, it is apparent that this reference was to more than the August 12th fire charged in count 5, but also included at least the August 20, 2004 fire charged in count 6. There was no evidence presented that the August 12, 2005 fire involved significant damage to forestland vegetation, or to residential structures of great monetary value. Nor was evidence presented that this particular fire presented a threat of great bodily damage or a threat of great damage to personal and private property. Nor did appellant admit these facts in his plea. Appellant argued at sentencing that he set the fires in sparsely populated areas and evidenced a desire to avoid harm to people and property. In these circumstances, we cannot say beyond a reasonable doubt that a jury would determine beyond a reasonable doubt that that the August 12, 2005 fire that was the basis of the aggravated term involved significant damage both to forestland vegetation and 8
residential structures of great monetary value or that it presented a threat of great bodily damage to personal and private property. Dual use prohibition The Attorney General also argues that a jury would necessarily have found beyond a reasonable doubt the aggravating circumstance that these fires were planned, as appellant admitted using a device to accelerate the fire. ( 451.1, subd. (a)(5).) Appellant counters that such use violates the prohibition upon dual use of facts. (Rule 4.420(c).) Appellant did admit the enhancement of using an accelerating device and the court imposed that as an enhancement. Rule 4.420(c) bars the use of a fact underlying an enhancement to impose an upper term unless the court strikes the enhancement. Nor may the court use an element of a crime to impose the upper term for that crime. (Rule 4.420(d).) The Supreme Court in Sandoval, supra, 41 Cal.4th 825, expressly recognized that, under rule 4.420(c), a fact underlying an enhancement may not be used to impose the upper term unless the court strikes the enhancement. (Sandoval, at p. 848.) The Attorney General contends that any error was waived by appellant s failure to raise an objection to this apparent dual use of facts. (See People v. Scott (1994) 9 Cal.4th 331, 352-355; see also People v. De Soto (1997) 54 Cal.App.4th 1, 7-9 [improper dual use of facts to impose the upper term waived by failure to impose a more specific objection at sentencing]; People v. Erdelen (1996) 46 Cal.App.4th 86, 90-91 [improper dual use of facts to impose upper term waived].) Appellant acknowledges that he did not object on this ground, but asserts that objection would have proved futile, because at that time under Black I, the court would have simply aggravated his sentence using other facts. This is doubtless true. Moreover, we are not persuaded that a jury would have found beyond a reasonable doubt that the arson in count 5 involved planning, where a psychological evaluation supported that appellant may have set the fires while in a dissociative state while only partially aware of his actions. In sum, we are not convinced, beyond a reasonable doubt, that had the jury been instructed on the aggravating factors found by the court, that it would have found any 9
particular aggravating circumstance to be true as to count 5. (Sandoval, supra, 41 Cal.4th at p. 843.) We cannot say the errors herein were harmless. II. Consecutive Sentences The trial court imposed consecutive sentences on the basis that the arsons were definitely distinct and independent crimes and will be determined to be consecutive. Appellant contends that imposition of consecutive sentences and enhancements violated his Sixth Amendment right to a jury trial under Cunningham, supra, U.S., 127 S.Ct. 856.) The California Supreme Court has recently rejected this claim in Black II, concluding that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive sentences. (Black II, supra, 41 Cal.4th at p. 806.) The court held that Cunningham did not undermine its previous conclusion in Black I, supra, 35 Cal.4th at page 1263, that imposition of consecutive terms under section 669 does not implicate a defendant s Sixth Amendment rights. (Black II, at p. 821.) This holding is dispositive of appellant s challenge to the imposition of consecutive sentences. DISPOSITION The decision of the trial court is reversed and the matter remanded to the trial court for resentencing. Kline, P.J. We concur: Lambden, J. Richman, J. 10