Opinion
B191411
1-2-2008
THE PEOPLE, Plaintiff and Respondent, v. CARLOS GUADALUPE GARCIA, Defendant and Appellant.
Michael Ian Garey for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Carlos Guadalupe Garcia timely appealed from his conviction on count 7, assault with a semiautomatic firearm on Rachael Salas. The jury found true an allegation that defendant personally used a firearm within the meaning of Penal Code section 12022.5. The jury aquitted defendant of charges of attempted murder and assault with a semiautomatic firearm as to three other victims. The court sentenced defendant to an aggregate 16 years, consisting of 6 years on the sustantive charge, plus a consecutive 10-year enhancement.
Unless otherwise noted, all statutory references are to the Penal Code.
At the close of the Peoples case, defendant made a motion for acquittal pursuant to section 1118.1 on count 7 based on insufficiency of the evidence. The court denied the motion. The court denied appellants motion for a new trial based on a claim of insufficient evidence and instructional error. Defendant contends the evidence was insufficient to support his conviction and the court committed instructional, evidentiary and sentencing errors. We vacate the sentence and remand for resentencing. In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
I. The Party
On December 31, 2004, Jacqueline Sanchez and her roommates hosted a New Years Eve party at their home in Lakewood. A group of four to six people, including appellant, arrived at the house with a couple of cases of beer and attempted to enter the party based on an invitation from Rachael Salas. A neighbor saw appellants group of about eight people arrive in three vehicles, acting casually and drinking beer, eight houses down from the party. The group proceeded toward the party carrying cases of beer.
Another witness estimated the size of appellants group as 12-15.
At the door, Mark Russell, Sanchezs boyfriend, denied the group access. Words were exchanged by the two groups of people (those inside the party and those who had just arrived). There was conflicting evidence as to which group were the verbal aggressors. Some witnesses stated appellants group became verbally hostile when denied entry. Other witnesses stated the guests already at the party became hostile. Appellant offered Russell a beer, but Russell was hostile.
It was generally agreed that at some point a bottle was thrown at Russell by an unknown source and a physical fight broke out on the porch immediately afterwards. There were conflicts again with regard to what happened next. There was evidence those who were denied access were trying to push their way in and evidence the people inside were pushing outwards on the door. Appellant testifed he was pulled inward during the scuffle. Appellant was hit repeatedly and had to crawl out of the house because every time he attempted to stand, he was hit back to the floor. Appellant felt as though he was being hit by more than one person and by more than hands or fists.
At this point, several fights were occurring simultaneously in and around the front yard and in the street. Four men who were denied access to the party were involved in a fight with ten to fifteen of the partygoers and were outnumbered and badly beaten. The fighting was described as "dirty," and there was evidence bottles were used.
One account of the fight indicated that after appellants group had been beaten and retreated to the street, the partygoers followed them into the street and beat them again.
II. The Shots
Appellant managed to exit the fight and make his way to his truck where he pulled out a gun. There was evidence appellant appeared to be injured and bloody and looked like he had gotten "his ass kicked."
Eight houses down from the party, appellant raised the gun into the air at a forty-five degree angle, yelled and fired one shot. Appellant then walked down another house and fired one shot into the air at a forty-five degree angle. Appellant thought he pulled back the slide (which causes the bullet to eject). An unexpended round and an expended casing were found seven houses down from the party house. Another expended casing was found at the house next door. A neighbor told police he had seen and heard the original two shots and then heard two more shots.
Appellant testified he had purchased the gun sometime prior to the fight because he had been the victim of a robbery. Appellant had never used the gun before; it came with only six bullets.
Then appellant made his way back to the party; he could see the fighting was still going on. Whether the fighting was still ongoing was disputed by other witnesses. Appellant was seen shooting the gun in the direction of the house. Appellant testified he fired one shot into the crowd. Other witnesses testified appellant fired two or three more shots. Three people from the party were struck by the bullet(s). Appellant said he felt dizzy and not altogether there. Appellant was found not guilty of all the offenses relating to the people he shot.
III. Assault
Rachael Salas saw appellant right before he fired the gun. Prior to shooting the gun, appellant was yelling and walking. Appellant appeared suddenly, yelled at the party and then shot the gun at no one in particular.
When Salas saw appellant with the gun, she started screaming for him to stop. Appellant shot the gun and Salas started to scream again at which point appellant walked over to Salas due to her screaming. Appellant waved the gun six inches from Salass face and said something to the effect of "shut the fuck," or "shut this fucking bitch up." Then Salas called to Yo-Yo, a friend of Salas and appellants cousin, who came to the party with appellants group. Yo-Yo went over to appellant and grabbed him and swung him to the ground where appellant blacked out. Appellant denied being swung to the ground. Appellant looked intoxicated, worn-out, or beat-up.
Appellant testified he did not remember seeing Salas and the incident she related did not occur.
At the time of appellants arrest on the night of the incident, when the gun was found a short distance away, it was empty and the gun was in the position it would have been if the last bullet had been fired.
DISCUSSION
I. Sufficient evidence supports appellants conviction.
Appellant contends there was insufficient evidence to support his conviction for assault with a semiautomatic firearm. "In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: `[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. The California Supreme Court has held, `Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."" (Citations omitted; original italics.) (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615-616.)
"`An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (§ 240.) Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury." (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) "To point a loaded gun in a threatening manner at another . . . constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury." (Ibid.)
Even though an assault is not committed by a persons merely pointing an unloaded gun in a threatening manner, "California courts have often held that a defendants statements and behavior while making an armed threat against a victim may warrant a jurys finding the weapon was loaded." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 & p. 12.)
A rule that the Supreme Court has been urged to reexamine and discard. (People v. Miceli, supra, 104 Cal.App.4th at p. 269.)
First appellant contends there was no evidence the gun was loaded because it was empty when it was found and the gun was in the position it would have been if the last shot had been fired. Appellant adds up the evidence favoring his having fired six shots, the number he said was in the gun. There is evidence that after appellant retrieved the gun from his car, he fired twice into the air and ejected one bullet as he walked back to the party. The evidence is conflicting as to the number of shots appellant fired when he returned to the party; one neighbor testified he heard two shots and then two more shots; other witnesses testified appellant fired two or three shots at the crowd. Appellant testified he fired one shot into the crowd. Even disregarding appellants testimony as we must as it came after his motion for acquittal on this count (cf. In re Anthony J. (2004) 117 Cal.App.4th 718, 727), a jury could have reasonably believed the gun was loaded. It certainly appears appellant thought the gun was loaded when he threatened Salas.
Second, appellant contends there was no evidence he intended to use physical force. In People v. Fain (1983) 34 Cal.3d 350, the defendant, who recovered money he had lost in a poker game at gunpoint, asserted the evidence was insufficient to sustain his conviction for assault with a deadly weapon because the evidence did not prove his intent to commit a battery on Albert Watkins, one of the players in the game. The defendant had left the game and then returned with a gun after being told he had been cheated. The defendant had struck two of the three victims with his gun. The court noted the jury could reasonably infer from the fact the defendant had aimed his gun and demanded compliance with his instructions to return his money that he had the requisite intent to use the gun if the victims failed to comply. (Id., at p. 356.) The court noted "[t]he threat to shoot with an unloaded gun is not an assault, since the defendant lacks the present ability to commit violent injury." (Id., at p. 357, fn. 6.) However, after observing the jury might have disbelieved the defendants testimony the gun was unloaded, the court stated, "In any case, even an unloaded gun can be used as a club or bludgeon. Defendant struck [the other two victims] with the gun, and approached sufficiently near Watkins to have the present ability to injure Watkins in the same manner." (Ibid.)
Even if the gun was unloaded, appellant conditionally threatened Salas. When appellant and his group arrived at the party they were denied entry and a verbal argument ensued which soon escalated into a physical brawl. By his own admission, appellant and some of his cousins had been beaten by a group of people already at the party. When appellant escaped the fighting, he went to his car and retrieved his gun and fired it recklessly into the air twice. Then appellant fired into the crowd without aiming and hit three partygoers. When Salas screamed for appellant to stop, he waved his gun six inches from her face and made threatening comments amounting to "shut up or else." Whether appellant told Salas to "shut up" or told someone to "shut her up," the threat was directed at Salas. Because Yo-Yo pulled appellant away from Salas, it is unknown if appellant would have carried out his implied threat. Given the preceding circumstances, if appellant had found the gun was empty, the jury could reasonably infer he would use it as a bludgeon to get Salas to shut up as he was close enough to her to do so. The fact appellant was waving the gun in Salass face rather than pointing it at her supports the inference he was likely to use it as a bludgeon.
II. The court did not commit any instructional error.
A. Conditional Threat Instruction
Appellant contends that his assault conviction must be reversed because the trial court improperly instructed the jury on assault by means of a conditional threat as follows:
1. The threat commands the immediate performance of some act which the threatening party has no legal right to demand;
2. The threat is made with the intention of compelling performance of that act by the application of physical force;
3. The person making the threat has placed himself or herself physically in a position to inflict such physical force; and
4. That person has proceeded as far as it is necessary to go in order to carry out his intention.
A conditional threat can be enough to qualify as an assault "[w]here a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party, and missed him." (Italics deleted.) (People v. Lipscomb (1993) 17 Cal.App.4th 564, 570.)
Appellant argues that (1) there was no evidence of a present ability because there was no evidence that the gun was loaded at the time of the incident, (2) there was no evidence that an imminent battery was contemplated in the event of non-compliance, and (3) assault by means of a conditional threat requires that the threat in fact be uttered, and, according to appellant, no threat was uttered.
1. Present Ability
The jurys verdict could have depended upon two theories, both of which assume that appellant had the present ability to commit assault with a semiautomatic firearm.
As discussed above, it is reasonable to assume the jury may have concluded that appellants gun was loaded. Alternatively, a person may commit assault with a semiautomatic firearm by attempting or threatening to use the firearm as a bludgeon. (People v. Miceli, supra, 104 Cal.App. 4th at pp. 270-271.) The jury might have concluded that even if the gun were unloaded, the appellant still had the present ability to commit an assault with a firearm, by using it as a club or bludgeon, since he was moving the gun within six inches of the victims face while basically telling her to "shut the fuck up." (See People v. Rodriguez, supra, 20 Cal.4th at p. 11.)
When substantial evidence shows that the trier of fact could have found the essential elements of a crime beyond a reasonable doubt through either of these theories, then this court must defer to the trier of facts determination about appellants present ability to commit the crime. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.)
2. Imminent Battery
Appellant further argues that there is no evidence that an imminent battery was contemplated. But, drawing of a weapon is generally evidence of an intention to use it. (People v. McCoy (1944) 25 Cal. 2d 177, 193.) The jury could reasonably infer from the facts that when the appellant waved his gun in Salass face and demanded that she "shut the fuck up," that he had the requisite intent to use the gun, either as a firearm or a bludgeon, if she failed to comply. (See People v. Duncan (1945) 72 Cal App 2d 423, 427.)
3. Utterance of a Threat
Lastly, appellant argues that he never uttered a threat. In People v. McMakin (1857) 8 Cal. 547, the defendant threatened to shoot if the victim did not leave a contested piece of property. The victim left. While this type of explicit threat is sufficient to satisfy the utterance of a conditional threat, it is not always necessary. For example, in People v. Lipscomb, supra, 17 Cal.App.4th at page 570, the defendant, with gun pointed at the victim, said "`he didnt want to have to shoot" and ordered the victim to enter a house. There, the appellate court reasoned the trial court did not err by giving a conditional assault instruction as there was no meaningful difference between "`do what I say or Ill shoot" and "`I dont want to have to shoot." (Id., at pp. 570-571.)
Here, similarly, appellant, while waving a gun six inches from Salass face, said "shut the fuck up," or something to that effect. While the statement in Lipscomb ("I dont want to have to shoot") implies that the perpetrator had the present ability to shoot and the statement in this case ("Shut the fuck up") carries no such direct implication, the statement still arguably qualifies as a conditional threat when considering the surrounding circumstances. (See People v. Fain, supra, 34 Cal.3d at pp. 356-357 & fn. 6.) There is no meaningful difference between "shut the fuck up or Ill bludgeon or shoot you" and "shut the fuck up" while waving a gun in front of someones face. This language combined with appellants action was enough to qualify as an utterance of a threat.
Hence, the court did not err in giving the conditional threat instruction.
B. Lesser Included Instruction
Appellant contends that his assault conviction must be reversed because the trial court improperly failed to instruct sua sponte on the lesser related offense of brandishing a weapon. (§ 417, subd. (a)(2).)
The court gave the following instruction on assault with a semiautomatic firearm: "In order to prove this crime, each of the following elements must be proved: [¶] 1. A person was assaulted; and [¶] The assault was committed with a semiautomatic firearm."
CALJIC No. 16.290 on brandishing a weapon provides: "In order to prove this crime, each of the following elements must be proved: [¶] 1. A person, in the presence of another person, drew or exhibited a firearm, whether loaded or unloaded; and [¶] 2. That person did so in a rude, angry, or threatening manner; and [¶] The person was not acting in lawful self-defense."
Appellant admits that case law generally establishes that brandishing a weapon is not a lesser included offense to assault with a semiautomatic firearm. (See People v. Steele (2000) 83 Cal.App.4th 212, 218.) Appellant urges, however, that when there is a conditional assault instruction coupled with a gun use allegation, brandishing becomes a lesser included offense to assault with a semiautomatic firearm and the trial erred by not providing the brandishing instruction to the jury.
The general rule is that a trial court must give instructions of offenses lesser to and necessarily included within the charged offenses, even in the absence of a request. (People v. Breverman (1998) 19 Cal.4th 142, 153-154.) A lesser offense is necessarily included in a greater offense in either of the following situations (1) the statutory elements of the greater offense include the statutory elements of the lesser offense, or (2) the facts actually alleged in the accusatory pleading include all the elements of the lesser offense. (Id., at p. 154, fn. 5.) In either situation, the greater offense cannot be committed without simultaneously committing the lesser offense. (People v. Steele, supra, 83 Cal.App.4th at p. 217.) Whether an offense is lesser included depends upon the wording of the accusatory pleading or the statutory language, but does not depend upon the evidence adduced at trial. (Ibid.) The courts obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. (People v. Breverman, supra, 19 Cal.4th at p. 154.)
Under either option stated above, appellant fails to prove that brandishing was a lesser included offense to assault with a semiautomatic firearm.
A. Statutory elements of the assault with a firearm do not necessarily include the statutory elements of brandishing a firearm.
One of the statutory elements of brandishing a weapon is that the person must draw or exhibit a firearm and do so in a rude, angry or threatening manner. Conversely, the elements of assault with a semiautomatic firearm do not require that a firearm be drawn or exhibited in an angry or threatening manner. In other words, although it often is the case that during an assault with a semiautomatic firearm the perpetrator also brandishes a weapon, it is possible to commit an assault with a semiautomatic firearm without brandishing a weapon. Thus, brandishing is not a lesser included offense to assault with a semiautomatic firearm.
B. The facts alleged in the amended pleading did not include all the elements of brandishing.
1. Facts Alleged in Count 7:
"On or about December 31, 2004, in the County of Los Angeles, the crime of ASSAULT WITH A SEMIAUTOMATIC FIREARM, in violation of PENAL CODE SECTION 245(b), a Felony, was committed by CARLOS GUADALUPE GARCIA, who did willfully and unlawfully commit an assault upon RACHAEL SALAS with a semiautomatic firearm.
"`NOTICE: The above offense is a serious felony within the meaning of Penal Code section 1192.7(c).
"It is further alleged that the defendant(s), CARLOS GUADALUPE GARCIA personally used a firearm, to wit, a handgun within the meaning of Penal Code sections 12022.5, 1192.7 and 667.5(c)."
2. Brandishing a Weapon Under Section 417 Compared to Use of a Weapon Under Section 12022.5
Appellant contends that the facts of the accusatory pleading, which included a firearm use allegation under section 12022.5, established all elements of brandishing. In order for appellants argument to succeed, the firearm use allegation must necessarily establish brandishing. This argument fails because a person can use a firearm within the meaning of section 12022.5 without brandishing a firearm within the meaning of section 417. Use under section 12022.5 requires only that a fear of harm or force, by means or display of a firearm, aid in the commission of a felony. (People v. Chambers (1972) 7 Cal.3d 666, 672.) In other words, "display" is not the only way to use a weapon. Therefore, it is possible to use a weapon under 12022.5 without brandishing a firearm within the meaning of 417.
Furthermore, because brandishing is a lesser related, not lesser included, offense to assault with a semiautomatic firearm, both sides prepared to prosecute and defend the assault charge, not the brandishing charge. To convict a defendant of an uncharged offense not included in the accusatory pleading is a denial of due process unless the defendant waives his right to be advised of the charge. (People v. Fain, supra, 34 Cal.3d at p. 353, fn. 1.) Because of this principle, a trial court cannot instruct the jury on a lesser related offense absent the stipulation of both parties, or a partys failure to object to such an instruction. (People v. Steele, supra, 83 Cal.App.4th at p. 217.)
Appellant makes a final argument that because the jury also received instructions for assault with a firearm by way of a conditional threat, that the instruction somehow makes brandishing a lesser and included offense. Both the conditional threat instruction and the brandishing instruction require that the perpetrator threaten the victim. Brandishing a weapon, however, requires that a party actually exhibit a firearm in the presence of another person. No such specific requirement is included in the conditional threat elements.
III. The court properly excluded the witness statements.
A. Background
On January 8, 2005, a defense investigator interviewed Raul Martinez, Thomas Martinez and Gonzalo Garcia, three of appellants cousins who were involved in the incident on New Years Eve. Each of the witnesses had given a statement to the police on the night of the incident. Appellant had intended to call them as witnesses. On the courts own motion, attorneys were appointed for each of the men, and, on advice of counsel, each asserted his Fifth Amendment privilege and stated he would refuse to answer any questions relating to the incident. The court ruled each man had a valid privilege to refuse to testify as any testimony as to the events in question could potentially incriminate him. The court indicated that it would not require the witnesses to answer any questions.
The witness statements prepared by the defense investigator concerning Thomas Martinez and Gonzalo Garcia were marked as exhibits A and B, respectively, the sheriffs narrative report (of the interviews of Garcia and Thomas Martinez) was marked as exhibit C, and the statement given by Raul Martinez was marked as exhibit D.
Appellant sought admission of the evidence of the out-of-court statements through the testimony of the defense investigator asserting that his due process rights would be violated by the exclusion of the statements in view of the unavailability of the witnesses by reason of their assertion of the Fifth Amendment privilege. Appellant argued the statements showed indicia of reliability because the witnesses admitted involvement in an altercation that resulting in a shooting and were thus against penal interest, the initial interviews were conducted when the witnesses memories were fresh, and the statements were corroborated in certain respects by other evidence. Appellant also argued the evidence was essential because it went to the question of whether the fight was still ongoing at the time the shots were fired, which corroborated his testimony. After extensive argument, the court denied admission of the statements and denied a defense motion for mistrial. The court ultimately ruled that because the statements were largely exculpatory, they did not have a sufficient indicia of reliability and generally were irrelevant to his defense of self defense or defense of others.
B. Analysis
Appellant contends he was deprived of due process and the right to present evidence under the state and federal Constitutions by the exclusion of the evidence of witness statements. (People v. Lucas (1995) 12 Cal.4th 415, 456.)
Citing Chia v. Cambra (9th Cir. 2004) 360 F.3d 997, appellant argues evidence of exonerating testimony by a third party, particularly when it is self-inculpatory, is deemed reliable and admissible. In Chia, the court noted: "It is clearly established federal law, as determined by the Supreme Court, that when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation. `The Supreme Court has made clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense." (Citation omitted.) (Id., at p. 1003.)
In order to weigh whether the exclusion of evidence violated the right to due process against the states interest in exclusion, the Chia court invoked a balancing test: "These factors include: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense." (Chia v. Cambra, supra, 360 F.3d at pp. 1003-1004.)
The trial court found the witness statements at issue to be unreliable because they were not inculpatory, but rather were exculpatory as to the witnesses. Basically, the witnesses stated they were attacked at the party and did not know anything about the gunfire. In other words, the witnesses exonerated themselves and denied any wrongdoing. Appellant suggests the statements were against the witnesses penal interest because they asserted their Fifth Amendment privilege. However, the possibility of incriminating testimony on the stand does not mean the statements were incriminating. The statements did not "so far subject [the declarant] to the risk of . . . criminal liability." (Evid. Code, § 1230.)
Moreover, the statements were not critical as they were irrelevant to the offense of which appellant was convicted. Appellant was only convicted on one count, and he testified he did not remember the encounter with Salas. Appellant asserts the statement of Gonzalo Garcia (Yo-Yo) tended to undermine Salass account of what occurred after the shootings. Garcia made no comment about the incident with Salas.
Generally, a trial court has the discretion to admit or exclude evidence. (Evid. Code, § 352.) "A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse." (People v. Rodriguez, supra, 20 Cal.4th at p. 9.) As there was no abuse of discretion, there was no violation of appellants constitutional rights. (See People v. Cudjo (1993) 6 Cal.4th 585, 611; People v. Hart (1999) 20 Cal.4th 546, 607.)
IV. The matter is remanded for resentencing.
Appellant contends the court erred in imposing an aggravated term on the use allegation because the evidence adduced at trial did not support the circumstances in aggravation cited by the trial court, the sentence might constitute cruel and unusual punishment, and the sentence was based on facts not found by the jury.
We need not address appellants passing suggestion that his sentence might constitute cruel and unusual punishment as he makes no attempt to discuss why it might do so. (People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37.)
A. Background
At the sentencing hearing, after indicating it had read the sentencing memoranda submitted by the parties, the court indicated the aggravating factors outweighed the mitigating factors and it was going to impose the upper term on count 7. When appellants counsel asked to be heard, the court vacated its tentative sentence and listened to argument. The court took a break to consider appellants sentence.
Afterwards the court imposed the middle term of six years on count 7 plus the upper term of 10 years on the personal use of firearm enhancement. The court had previously indicated appellants lack of criminal record was a factor in mitigation. The court explained it had not used any of the aggravating factors as to the sentence it imposed on the substantive count, but, as to the personal use enhancement, it found the crime involved great violence, the threat of great body harm and the victim was particularly vulnerable.
B. Application
In Cunningham v. California (2007) 127 S.Ct. 856, 860, the court concluded: "The Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." Accordingly, the court reasoned that Californias determinate sentencing law violated a defendants right to a jury trial because it permitted a judge, rather than a jury, to find facts by a preponderance of the evidence exposing a defendant to an elevated upper term. (Id., at pp. 868-871.) In the instant case, as none of the facts cited by the court to impose the upper term on the enhancement were admitted by appellant or established by the jurys verdict, appellants Sixth Amendment rights were violated by the imposition of the upper term on the enhancement.
The California Supreme Court has rejected respondents suggestion that appellant forfeited this claim of error because he did not object under Blakely or the right to jury trial. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
"The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman." (People v. Sandoval, supra, 41 Cal.4th at p. 838.) Given that the jury acquitted appellant of the more serious charges involving his shooting into a crowd, we cannot say beyond a reasonable doubt that it would have found true the assault involved great violence, the threat of great bodily harm or a particularly vulnerable victim.
In Sandoval, the California Supreme Court performed a limited judicial reformation of section 1170, subdivision (b) with respect to defendants whose cases were remanded for resentencing by mirroring urgency legislation eliminating the statutory presumption for the middle term, which in turn permitted a trial court to impose the upper term when resentencing on a substantive offense due to Cunningham error. (People v. Sandoval, supra, 41 Cal.4th at pp. 843-852.)
However, this court recently determined that such a reformation was not permitted for resentencing on an enhancement pursuant to section 1170.1. (See People v. Lincoln (2007) 157 Cal.App.4th 196, ___, [68 Cal.Rptr.3d 596, 602-603].) Moreover, unlike the situation in Lincoln where the defendant had prior convictions which would permit imposition of the upper term on the enhancement (Apprendi v. New Jersey (2000) 530 U.S. 466, 490), in the case at bar, the court specifically stated appellant had no prior criminal record. Thus, the court may impose either the midterm or the lower term on the enhancement to be consistent with Cunningham. (People v. Lincoln, supra, 157 Cal.App.4th at p. ___, .)
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing consistent with the views set forth in this opinion. In all other respects, the judgment is affirmed.
We concur:
PERLUSS, P.J.
ZELON, J.