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People v. Malone11/17/2004
g out the crime. (Blakely, supra, 124 S.Ct. at p. 2537). The Supreme Court found the lower court's action violated the rule that "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi ).) In reaching this conclusion, the court stated that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant ... [and] not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Blakely, supra, 124 S.Ct. at p. 2537.)
Under California's determinate sentencing law, the maximum sentence a judge may impose for a conviction without making any additional findings is the middle term. Penal Code section 1170, subdivision (b), states that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." Further, California Rules of Court, rule 4.420(b), states that "Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation." Here, the trial court found four aggravating circumstances and did not mention any mitigating circumstances. Nevertheless, the court might have violated Blakely because the last aggravating factor cited by the court ("your blood alcohol was ....25 [percent]") did not relate to any prior conviction and was not admitted by the defendant. As such it was a finding made by the court.
The People contend that California's "triad" sentencing system does not offend Blakely at all; and that any one of the three legislatively-authorized terms for an offense, including the upper term, can be imposed by a trial court without violating a defendant's Sixth Amendment rights. Under this view of the system, even though there is a statutory presumption in favor of the mid-term sentence, the upper term is the statutory maximum sentence for purposes of our Blakely analysis.
*4 The People's argument might have been more persuasive before Blakely. However, it directly contradicts the Supreme Court's express holding that the statutory maximum is "not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Blakely, supra, 124 S.Ct. at p. 2537.) Under California law, the maximum sentence a judge may impose without any additional findings is only the middle term. (Pen.Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420.)
We also reject the People's contention that defendant forfeited his right to claim Blakely error by failing to raise this issue in the trial court. Because of the constitutional implications of the error at issue, the forfeiture doctrine cannot apply here. (See People v. Vera (1997) 15 Cal.4th 269, 276-277 [claims asserting deprivation of certain fundamental, constitutional rights cannot be forfeited by failure to object].) Furthermore, there is a general exception to the rule of forfeiture where an objection would have been futile. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648, and authority discussed therein.)
We have no doubt that, at the time of the sentencing hearing in this case, an objection that the jury rather than the trial court must find aggravating facts would have been futile, especially since the sentencing resulted from a plea agreement without a jury trial. (See Pen.Code, § 1170, subd. (b); Cal. Rules of Court, rules 4.409 & 4.420-4.421.) In any even
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