Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for a writ of habeas corpus, Los Angeles County Super. Ct. No. VA075507, Dewey Lawes Falcone, Judge. Petition granted.
Michael P. Judge, Public Defender, Albert J. Menaster, Randall Rich, Christopher Capestro and Karen Nash, Deputy Public Defenders, for Petitioner.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Ana R. Duarte, Deputy Attorneys General, for Respondent.
MALLANO, P. J.
Represented by the Office of the Public Defender, David Camargo requests that his sentence be reduced from nine years to seven years, that is, his 2004 sentence in which the trial court imposed the upper term be modified to the midterm based on Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham) and its progeny, which are retroactive to his case.
We granted the People’s request that this court take judicial notice of the appellate file in People v. Camargo (B175113).
We find Cunningham error and remand the matter for resentencing under the reformed system prescribed by the California Supreme Court.
BACKGROUND
Camargo was convicted by jury of inflicting corporal injury on his sons’ mother with personal infliction of great bodily injury involving domestic violence (count 2) and violent false imprisonment (count 3). On March 16, 2004, the trial court sentenced Camargo to nine years in prison: a four-year upper term on count 2, plus a consecutive five-year upper term great bodily injury enhancement. Judge Falcone imposed, but stayed, a three-year upper term on count 3.
In choosing the upper terms, Judge Falcone stated: “I’ve been doing this for a long period of time. And in my opinion — and I’ve handled death penalty cases — and this is one of the more egregious cases that I’ve ever had to listen to testimony.
“Irrespective of what the jury did on the charge of attempted murder and kidnapping, etc. and what the jury found the defendant guilty of, the court can factor in the circumstances. Even though the jury found the defendant not guilty of those charges, the court can take into consideration the facts that the court heard.
“And, once again, it was — frankly, I was shocked by the jury verdict, but nevertheless I’m bound by it. But again, this was one of the more egregious, horrendous cases in which I’ve heard injuries and the conduct of the defendant.
“So under rule 4.414 [of the California Rules of Court], the court, in determining whether or not to grant probation, the court does take into consideration the nature, the seriousness and circumstances of the crime, again, including all of the circumstances from the initial incident back in December when there was an alleged kidnapping up to the event that took place in the apartment building.
“Secondly, the court does consider the victim particularly vulnerable. I mean, she is a female, and the gentleman is a male. That is a factor.
“But she is rendered naked and beaten. And I recall distinctly Mr. Camargo — a question being asked by [the prosecutor], ‘Did you not in fact put your hand inside her mouth and rip your hand out of her mouth?’ And he did answer, ‘Yes.’
“And then after all those incidents in that room, naked, she jumps out of a closed window, second-story floor, goes down to the bottom floor. And then, of course, Mr. Camargo pursues her.
“And witnesses indicate that while he pursues her and catches up with her, he beats her.
“Thirdly, there’s no doubt that the defendant inflicted great physical and emotional injury on the victim.
“And therefore, the court is not inclined to grant probation and declines to grant probation. The request or the suggestion by the probation department that this be referred out for a [Penal Code section] 1203 diagnostic evaluation, the court likewise declines to consider that based upon the totality of the factors and the fact that the court heard all the evidence in this case.
“The court will select count 2, the [Penal Code section] 273.5[, subdivision (a)], as the base term. And considering the factors in aggravation under [California Rules of Court,] rule 4.421, again, number 1, the court takes into consideration that the crime did include great violence, great bodily injury or other acts disclosing a high degree of viciousness; [¶] 2, again, the victim was particularly vulnerable; [¶] 3, the manner in which the crime was carried out does indicate planning.
“On two separate occasions — and merely because the jury did not find the defendant guilty beyond a reasonable doubt of the kidnapping when he took her out in the desert, he did indicate to her that, in effect, he was going to go to hell. She was going to go to heaven. And that in essence she was going to be worse off than Jesus Christ after he finished with her.
“That, fortunately, did not take place in the desert. But in the not-too-distant future the incident took place in the apartment building. And his first comments when he gets her into that room is, ‘You’re not going to like what’s going to happen.’
“So the court does feel that there was a planning by the defendant as to what he was going to do.
“I do think, item number 4, that with this victim the defendant has engaged in a violent conduct which indicates to this court that the defendant is a danger to society.
“The factors in mitigation under [California Rules of Court,] rule 4.423, the only factor the court finds in mitigation is the defendant has no prior record.
“There are a number of circumstances upon which the defendant has argued mitigating factors and, for example, the drug use of Mr. Camargo at the time of the second incident in the apartment building. The court went back and looked at its notes. And Dr. Farnacci indicated that the defendant told him on the day that he was taken in for medical care, when the police finally apprehended him, that he had not used drugs for 4 days.
“And then Dr. Farnacci also indicated that on a scale of how they evaluate the responsiveness of a patient, he ranked very high. In other words, there was no indication at that point in time that he was under the influence of any intoxicating substance.
“So the court, as to count 2, selects the high-term, under Penal Code section 273.5[, subdivision (a)], of 4 years in the state prison, as well as the high-term — the enhancement under [Penal Code section] 12022.7[, subdivision (a)], rather, 5 years. That’s a total of 9 years in the state prison.
“As to count 3 — and I’ve done my own research on that, the violation of Penal Code section 236, false imprisonment by force, which likewise the subject was Brieanna, that took place in the same apartment.
“The court is of the opinion that that offense was an incident to which the entire objective was to create [sic] or even kill this victim. And therefore, the court will impose the high-term of 3 years in the state prison but stay that imposition of sentence under Penal Code section 654.”
On appeal in B175113, Camargo contended that the trial court erred in instructing the jury and in imposing a sentence contrary to Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531](Blakely).
In our opinion filed on April 18, 2005, we rejected Camargo’s Blakely claim, stating: “We recognize that the issue whether Blakely applies to the California sentencing scheme generally, and specifically to the imposition of upper terms, presently is pending before our Supreme Court. (People v. Towne (review granted Jul. 14, 2004) S125677; People v. Black (review granted Jul. 28, 2004) S126182.)
“In the meantime, we agree with the cases, in most of which the Supreme Court has granted review, concluding that our sentencing scheme is sufficiently different from Washington’s that Blakely does not apply. (See People v. Joy, review granted Mar. 16, 2004, S130795, formerly cited as 125 Cal.App.4th 318, 324–339.) Because Camargo offers no other challenge to his sentence, we reject his Blakely challenge and affirm the imposed upper terms.” (People v. Camargo (Apr. 18, 2005, B175113 [nonpub. opn.], at p. 13.)
On August 10, 2005, the Supreme Court denied review, stating in the order: “Petition for review denied without prejudice to any relief to which defendant might be entitled upon finality of People v. Black (2005) 35 Cal.4th 1238 [29 Cal.Rptr.3d 740] regarding the effect of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531], and United States v. Booker (2005) 543 U.S. ___ [160 L.Ed.2d 621, 125 S.Ct. 738], on California law.” (S134268.)
On October 20, 2008, Judge Falcone denied Camargo’s petition for a writ of habeas corpus in a three-page order, stating that Cunningham does not apply retroactively to Camargo’s case.
In a petition filed in this court on December 18, 2008, Camargo contended his sentence violates his constitutional rights as set forth in Cunningham. As Camargo’s case was final on August 22, 2005, and as the law was still in flux, the petition was denied with the following explanation: “Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] does not apply to cases final as of January 22, 2007, the date that Cunningham issued. (Teague v. Lane (1989) 489 U.S. 288, 310–311 [109 S.Ct. 1060]; Schardt v. Payne (9th Cir. 2005) 414 F.3d 1025, 1036; Cooper-Smith v. Palmateer (9th Cir. 2005) 397 F.3d 1236, 1246; Cook v. United States (9th Cir. 2004) 386 F.3d 949, 950.)”
We denied Camargo’s petition on January 14, 2009. The Supreme Court published In re Gomez (2009) 45 Cal.4th 650 two weeks later, on February 2, 2009. On January 22, Camargo sought review in the Supreme Court. (S169955.) The People agreed in their answer to the petition filed in the Supreme Court that the petition should be granted. On April 1, the Supreme Court ordered that this case be transferred here for reconsideration of the matter in light of Gomez.
DISCUSSION
In In re Gomez, supra,45 Cal.4th at page 660, the Supreme Court concluded that “Cunningham applies retroactively to any case in which the judgment was not final at the time the decision in Blakely was issued [2004]. Those who wish to raise a challenge under Blakely to the imposition of an upper term sentence may do so by filing a petition for writ of habeas corpus in the trial court. In order to obtain relief, any such petitioner will be required to establish, of course, that a violation of the Sixth Amendment occurred in his or her case. Imposition of the upper term violates the Sixth Amendment under Blakely and Cunningham only if no legally sufficient aggravating circumstance has been found to exist by the jury or been established under one of the exceptions to Blakely’s jury trial requirement. [Citation.] Moreover, even if error is established, resentencing is not required if the record demonstrates the error was harmless beyond a reasonable doubt. [Citation.]”
When a reviewing court determines that there is prejudicial Cunningham error, the matter should be remanded to the trial court for it to resentence the defendant according to the revised sentencing rules: “The Judicial Council already has amended the sentencing rules to conform to the current version of the [determinate sentencing law], [fn. omitted] and these same rules will provide guidance for trial courts in proceedings conducted on remand. [Citations.] The trial court will be required to specify reasons for its sentencing decision, but will not be required to cite ‘facts’ that support its decision or to weigh aggravating and mitigating circumstances. [Citations.]” (People v. Sandoval (2007) 41 Cal.4th 825, 846–847 (Sandoval).)
In People v. French (2008) 43 Cal.4th 36, at pages 45–46, the Supreme Court reiterated its decision in Sandoval: a prejudiced defendant “is entitled to be resentenced under a scheme in which the trial court has full discretion to impose the upper, middle, or lower term, unconstrained by the requirement that the upper term may not be imposed unless an aggravating circumstance is established. Under our holding in Sandoval, if a defendant is successful in establishing Cunningham error on appeal, the trial court is not precluded from imposing the upper term upon remand for resentencing. The defendant is entitled only to be resentenced under a constitutional scheme and is afforded the opportunity to attempt to persuade the trial court to exercise its discretion to impose a lesser sentence.”
Because Blakely, supra,542 U.S. 296, applies to Camargo’s sentence and because it appears that Camargo was prejudiced by the determination of factual issues by the trial court, rather than the jury, we remand this matter for resentencing.
DISPOSITION
The petition for a writ of habeas corpus is granted. This matter is remanded to the trial court for resentencing.
We concur: ROTHSCHILD, J., JOHNSON, J.