Metropolitan News-Enterprise


Friday, December 10, 2004


Page 3


C.A.: Blakely Does Not Bar Judges From Using Availability Of Consecutive Terms as Factor in Selecting Sentence


By DAVID WATSON, Staff Writer


Judges may consider the availability of consecutive terms on other counts in selecting an upper term sentence without violating Blakely v. Washington (2004)124 S.Ct. 2531, the Fourth District Court of Appeal ruled yesterday.

Judges may also base such a sentencing choice on the fact a defendant was on probation at the time the crimes were committed, but may not consider the defendant’s allegedly unsatisfactory performance while on probation, the court’s Div. Three said.

The ruling appears to be the first in the state to elaborate on the distinction between prior convictions, which judges may take into account in making sentencing determinations, and factual matters which, under Blakely, are the province of juries.

This district’s Div. Seven and two panels of the Fourth District’s Div. One have ruled that the state’s determinate sentencing law violates Blakely.  The issue is also before the state Supreme Court, which is expected to expedite review of the unpublished May 17 ruling by this district’s Div. Four in a carjacking case, People v. Towne, B166312.

Penal Code Sec. 1170 requires imposition of the middle term for a conviction unless there are “circumstances in aggravation or mitigation of the crime.”

In yesterday’s ruling, Justice Kathleen O’Leary said Orange Superior Court Judge James A. Stotler would have to resentence Vinh Quang Vu for unlawfully taking a vehicle. Stotler sentenced Vu to the upper term of three years.

The trial judge cited six reasons for selecting the upper term: that Vu carried out the crime with “planning and criminal sophistication”; that the crime involved an “attempted and actual taking of great monetary value”; that Vu’s “prior performance on probation had been unsatisfactory as evidenced by violations”; that Vu had sustained numerous prior convictions; that he was on probation when he committed the crimes; and that the court could have imposed consecutive sentences on the other charges of which Vu was convicted, which included forgery and commercial burglary.

O’Leary said that the last three factors were proper under Blakely, but the first three were not.

Blakely, she said, clearly bars judges from evaluating factual matters like the degree of criminal sophistication and the economic scale of the crime, but clearly permits prior convictions to be considered.

The probation issues and the availability of consecutive sentences were closer questions, she declared.

O’Leary noted that the court’s Div. One, in People v. George (2004) 122 Cal.App.4th 419, said probation was a proper factor since it “arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction.” But the defendant’s performance while on probation, she said, was a different matter.

“Although Vu’s prior performance on probation derives from prior convictions, this aggravating circumstance requires a factual finding as to whether Vu’s performance on probation was ‘unsatisfactory,’ the justice explained. “This aggravating circumstance must be found by the jury beyond a reasonable doubt because it requires an additional factual finding.”

But Stotler’s use of the fact that he could have imposed consecutive sentences on other counts as a basis for selecting the upper term was proper, O’Leary said.

“The court’s decision to impose the upper term when it could have imposed consecutive sentences did not require any additional factual findings by the jury,” she wrote, citing People v. Calhoun (2004) 123 Cal.App.4th 1031. “We find the court was constitutionally entitled to consider the possibility of consecutive sentences as a circumstance to support the imposition of the upper term.”

The case is People v. Vu, G033583.


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