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People v. Estrella1/13/2005
in aggravation that the trial court used or could have used to impose the upper term on count 4. Additionally, he could not have forfeited the right by his mere silence.
We now turn to the merits of defendant's Blakely claim. In Blakely, the high court reaffirmed the conclusion it had reached in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi): "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." (Id. at p. 490; Blakely, supra, 124 S.Ct. at p. 2536.) The Blakely court further 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. [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." (Blakely, supra, at p. 2537.)
Our state Supreme Court is currently reviewing the question whether an upper term, imposed pursuant to California's determinate sentencing law (§ 1170, subd. (b)) and without jury findings of the underlying factors in aggravation, violates a defendant's Sixth Amendment right to a jury trial under Blakely. (People v. Towne, review granted July 14, 2004, S125677 (Towne); People v. Black, review granted July 28, 2004, S126182 (Black).) Since review was granted in Towne and Black, numerous California Court of Appeal decisions have reached opposite conclusions on the issue. To date, all of these Court of Appeal decisions have been accepted for review or are subject to review being granted.
In our view, an upper term imposed by a trial court under our state's determinate sentencing law (§ 1170 et seq.), and without jury findings of the circumstances in aggravation, does not violate a defendant's right to a jury trial under Blakely. Instead, we believe that the "statutory maximum" for purposes of Blakely is the upper term that the trial court is authorized to impose pursuant to section 1170, subdivision (b). In other words, the right to a jury trial under Blakely arises only if the trial court imposes a term in excess of the standard range structure for the offense, based on facts other than a prior conviction. Thus, we reject defendant's contention that the trial court's imposition of the upper term of eight years on count 4 violated his right to a jury trial under Blakely.
DISPOSITION
The matter is remanded to the trial court to strike defendant's conviction in count 2 for assault, to stay defendant's sentences on counts 1 and 6, and to amend the abstract of judgment accordingly. The abstract of judgment shall be further amended to reflect that defendant's five-year enhancement was imposed under section 667, subdivision (a)(1), rather than section 667.5, subdivision (b). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur:
Ramirez, P.J.
Hollenhorst, J.
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