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People v. Malone11/17/2004
t, we have discretion to consider issues that have not been formally preserved for review. (See 6 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Reversible Error, § 36, p. 497.) The purpose of the forfeiture doctrine is to "encourage a defendant to bring any errors to the trial court's attention so the court may correct or avoid the errors...." (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060), and we find it particularly inappropriate to invoke that doctrine here, since Blakely was decided after defendant was sentenced.
Accordingly, we conclude the trial court committed Blakely error to the extent that it relied upon an improper aggravating factor. However, we cannot automatically accept defendant's contention that this error requires reversal of his sentence.
II. Prejudice Resulting from Blakely Errors
Since the errors found in the trial court's sentencing may result in violations of the federal Constitution, we apply the standard of prejudice applicable to Apprendi errors. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) "[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) This record cannot support any conclusion regarding whether a jury might have found the one aggravating factor that defendant denied, i .e., that his blood alcohol level was .25 percent. Accordingly, this aggravating factor cannot be used to support the trial court's sentence. We turn to the question of whether the aggravated sentence can be supported by other, indisputable findings.
III. Reasonable Probability of a Different Outcome Without the Invalid Factor
*5 "[G]enerally, error involving the infringement of a constitutional right, like any other error, requires a further determination whether the defendant has been prejudiced, and the final test is the 'opinion' of the reviewing court, in the sense of its belief or conviction, as to the effect of the error." (People v. Watson (1956) 46 Cal.2d 818, 835.) Thus, "ordinarily, where the result appears just, and it further appears that such result would have been reached if the error had not been committed, a reversal will not be ordered." (Id. at p. 835.) As the Watson court noted, in determining the severity of the error, "the controlling consideration" should be "whether the error has resulted in a 'miscarriage of justice' " (ibid.) to be "declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Id. at p. 836.)
Although we must disregard one aggravating factor, we also must consider whether any of the other aggravating factors considered by the trial court can support the upper term sentence. If another factor supports the sentence, we apply the Watson test to determine whether it is reasonably probable that the trial court would have imposed a lesser sentence in the absence of the erroneous aggravating factor. This is true even though Blakely error is evaluated under the Chapman test; because under California law, a single factor in aggravation is sufficient to support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Cruz (1995) 38 Cal.App.4th 427, 433; see also People v. Kelley (1997) 52 Cal.App.4th 568, 581; People v. Piceno (1987) 195 Cal.App.3d 1353, 1360; People v. Lamb (1988) 206 Cal.App.3d 397, 401.)
The requirement that a fact which increases a sentence beyond the statutory maximum must be found by a jury does not apply to prior convictions. (Almendarez-Torres v. United States (1998) 523 U
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