Metropolitan News-Enterprise


Thursday, July 15, 2004


Page 1


S.C. to Consider Impact of U.S. High Court’s Sentencing Ruling


By KENNETH OFGANG, Staff Writer/Appellate Courts


The state Supreme Court yesterday chose an auto-taking case from Los Angeles County as a vehicle to consider what effect a recent U.S. Supreme Court decision on sentencing will have in California.

The justices unanimously granted review in People v. Towne, B166312, a May 17 case decided by Div. Four of this district’s Court of Appeal.

The panel, in an unpublished opinion by Justice Daniel Curry, upheld Shawn Towne’s conviction and eight-year sentence for the unlawful driving or taking of a vehicle.

Los Angeles Superior Court Judge Meredith Taylor imposed the upper prison term of four years for the “wobbler” and doubled it under the second-strike provision of the Three Strikes Law—Towne was convicted of a 1995 robbery—although she struck a pair of one-year prior-prison-term enhancements.

In addition to the vehicle-taking charge, Towne was accused of carjacking, kidnapping, second degree robbery, grand theft auto, criminal threats, kidnapping for carjacking and kidnapping to commit robbery.

Prosecution Witness

The prosecution’s main witness, Noe Arana, testified that he and the defendant met on a street corner in West Hollywood and agreed “to hook up or something.” They rode for a time in his car, Arana testified, before the defendant “just went crazy,” hitting him, tying him up, and then driving erratically and demanding money.

Arana told the jury he had only $40 or $50, so he told the defendant to take what he wanted. He said he escaped hours later, ran toward some condominiums, and told people there to call the police.

The car was stopped by a Los Angeles police officer the next day. The officer said Towne admitted that the car was stolen but claimed he had nothing to do with the theft and was planning to return the vehicle to the owner.

Towne testified that he was a prostitute and that Arana was a customer. He claimed that he fell asleep in their motel room and that when he woke up, Arana was attacking him.

Arana, he said, offered to pay him $400 not to report the incident to police and gave him two credit cards and the PIN for them. They went to a 7-11, but when he looked back, he saw he saw that Arana had left the car, he testified.

Jurors acquitted Towne of all charges except vehicle taking. In denying defense motions to reduce the charge to a misdemeanor and to strike the prior conviction, Taylor noted that Towne had been involved in several “adverse encounters...with law enforcement.”

She also cited testimony of two witnesses that after Arana ran from the car, he appeared terrified. That suggested the crime was not a simple vehicle taking, the judge said, but “an aggravated situation.”

Appeals Court Ruling

Curry, writing for the Court of Appeal, said the trial judge did not abuse her discretion in imposing the upper term or the second-strike sentence. He rejected the defense contention that the stated reasons for the trial judge’s ruling conflicted with the findings implicit in the jury verdict acquitting Towne of the more serious charges.

“The court was well aware of the jury’s findings, acknowledged the victim lied and observed that the jury had been able to weigh the evidence and make credibility findings in reaching its verdicts,” the justice wrote.

If there had been error, Curry said, it would have been harmless, since a single aggravating factor is enough to support an upper-term sentence.

In granting review, the justices instructed counsel “to address the following issues: (1) Does Blakely v. Washington (June 24, 2004)    U.S.    [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial?”

The Supreme Court held in Blakeley that a trial judge applying Washington state sentencing guidelines violated the defendant’ s right to a jury trial by imposing an aggravated sentence based on facts that had neither been found by a jury nor admitted by the defendant.

The decision has resulted in a great deal of discussion as to how it will impact various sentencing schemes, and has led to conflicting rulings as to the continued vitality of the federal Sentencing Guidelines.

In other action at its conference yesterday, the high court agreed to decide whether a defendant’s waiver of Fourth Amendment rights as a condition of parole validated a search of his mouth—resulting in the discovery of a bindle of cocaine—when police did not know the defendant was on parole.

Justice Art McKinster of the Fourth District’s Div. Two said in an unpublished opinion that the search was illegal under People v. Sanders (2003) 31 Cal.4th 318, in which the court held that the warrantless search of a home could not be upheld as a parole search where the police did not know the defendant was on parole at the time.

Justice Jeffrey King concurred, but Presiding Justice Manuel Ramirez questioned whether Sanders applies to an encounter on the public street, and said the prosecution should in any event be given an opportunity to prove on remand that the search satisfied Sanders, which had not yet been decided at the time of the suppression hearing.

The case is People v. Moore, E032142.


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