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People v. Calhoun11/2/2004
uity in order to object and presumably obtain clarification regarding the court's intended meaning of the phrase "that aggravating factor." Furthermore, we believe that ambiguity in the court's language did not satisfy Scott's requirement that the court "clearly apprise" the parties of the reasons supporting its discretionary sentencing choice of imposing the upper term for each of Waller's gross vehicular manslaughter convictions. (People v. Scott, supra, 9 Cal.4th at p. 356, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)
E
Although Waller contends the trial court's reliance on a multiple-victim aggravating circumstance as support for imposition of the upper six-year terms also violates Blakely, we need not address that question because we have resolved the matter on other, nonconstitutional grounds in part II.B., ante. (Kollander Construction, Inc. v. Superior Court (2002) 98 Cal.App.4th 304, 314, 119 Cal.Rptr.2d 614; Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65, 195 P.2d 1.)
In any event, it appears Blakely does not apply to the sentencing error asserted by Waller. Blakely involved application of the rule expressed in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435, that: " '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum **554 must be submitted to a jury, and proved beyond a reasonable doubt.' " (Blakely, supra, --- U.S. at p. ----, 124 S.Ct. at p. 2531.) However, in interpreting the meaning of "statutory maximum," Blakely stated:
"[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the *1054 jury verdict or admitted by the defendant. [Citations.] In other words, the relevant '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. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,' [citation], and the judge exceeds his [or her] proper authority." (Blakely, at p. 2537.)
In this case, the jury's verdicts clearly reflected factual findings that Waller was guilty of one count of gross vehicular manslaughter in killing Jump and guilty of another count of gross vehicular manslaughter in killing Brian Hanson. Therefore, to the extent the trial court in sentencing Waller relied on the aggravating circumstance that there were separate victims of violent crime, or "multiple victims," that circumstance was based solely on the charged offenses of which the jury found him guilty beyond a reasonable doubt. [FN15] The upper term based on that circumstance was therefore imposed "solely on the basis of the facts reflected in the jury verdict." (Ibid.) The upper term was "impose[d] without any additional findings" by the trial court. (Ibid.) Similarly, to the extent the upper term was imposed because concurrent terms were imposed under circumstances in which consecutive terms could have been imposed, no additional findings by the jury were required. Accordingly, although we find error under California law, we doubt the trial court's error violated Waller's Sixth Amendment rights as interpreted by Blakely.
FN15. To the extent the trial court also referred to Michael Hanson and Jasen Moore, who were injured but not killed in the accident, the jury also found Waller guilty in separately charged offenses of reckless driving with bodily injury (§ 23104, subd. (a)) as to each of those victims. Therefore, the "multiple victims," or separate victims of violence, cited by the trial court were reflected in the jury
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