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People v. Malone11/17/2004
responsibility for his actions. He denied being drunk and disputed the finding that his blood alcohol level was .25 percent.
Defendant was charged with one count of driving under the influence of an alcoholic beverage and a drug (Veh.Code § 23152(a)) (further unspecified references are to the Vehicle Code) including allegations that he suffered three or more convictions within seven years of the commission of the present offense (§ 23550) and that he had a blood alcohol content of .2% or higher within the meaning of § 23578. He was also charged with one count of driving with blood alcohol content over .08% (§ 23152(b)), including the same aggravating allegations and with one misdemeanor count of driving with a suspended license (§ 14601.2(a)).
Defendant pleaded "no contest" to the count of driving with a blood alcohol content of .08% and waived his constitutional rights pertaining to trial. The plea was "open" to the court (meaning that no promises were made regarding sentence) and the remaining counts were dismissed.
At the sentencing hearing, the court found defendant to be "an extreme threat to our community" and sentenced him to the upper term of three years. The court ordered his license revoked for four years, and imposed a $600 restitution fine. The court stated the following reasons for imposing the upper term: " You have numerous prior convictions. You were on a grant of conditional sentence for similar conduct at the time this offense was committed. Your prior performance on grants of probation has been unsatisfactory, and your blood alcohol was ....25 [percent]." Defendant filed a timely notice of appeal from the judgment and sentence.
DISCUSSION
Defendant filed an opening brief with this court which asked for an independent review of the record as required by People v. Wende, supra, 25 Cal.3d 436. During the pendency of this appeal, we asked for supplemental briefing in light of the recent Blakely decision. In Blakely, supra, 124 S.Ct. 2531, the Supreme Court held that a state trial court's imposition of a sentence that exceeded the standard range's statutory maximum for the charged offense, based on additional factual findings made by the court, violated a defendant's Sixth Amendment right to trial by jury. (Blakely, supra, at p. 2539.)
Defendant contends that, under Blakely, supra, 124 S.Ct. 2531, the trial court improperly imposed the aggravated term for his DUI, in violation of the Sixth Amendment. The Attorney General replies that defendant waived this issue by failing to raise a challenge to the sentencing at trial, that no constitutional violations occurred under Blakely and that, even if Blakely error does exist, it was harmless error and does not warrant reversal of the additional sentence.
*3 We undertake a multiple-step analysis of these issues. First, we consider whether Blakely, supra, 124 S.Ct. 2531 applies to California's determinate sentencing structure. Next, if it is found that Blakely applies, we must determine whether the imposition of an aggravated sentence based on factual findings made by a trial judge and not by a jury was harmless error beyond a reasonable doubt. And finally, if an error does exist, we must determine whether it is reasonably probable that the trial court would have imposed a lesser sentence had it not relied on the additional factors not found by a jury.
I. Applicability of Blakely Errors to California's Sentencing Scheme
In Blakely, the U.S. Supreme Court held that a Washington State court denied a criminal defendant his constitutional right to a jury trial by increasing his sentence for second degree kidnapping from the "standard range" of 49 to 53 months, to 90 months based on the trial court's finding that he had acted with "deliberate cruelty" in carryin
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