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Name: People v. Butler
Case #: A101799
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 09/27/2004
Subsequent History: Rev. gr. 12/15/04: S129000

Butler was sentenced to an upper term of eight years for kidnap and sale of a controlled substance. The trial court based its choice of the upper term on several aggravating factors (the threat of great bodily harm, the large quantity of contraband, that Butler took advantage of a position of trust, that the crime was violent, and that Butler’s prior convictions were both numerous and of increasing seriousness.) No mitigating factors were cited. While his appeal was pending, Butler sought leave to file a supplemental brief alleging Blakely sentencing error. The appellate court rejected the prosecutor’s contention that Blakely did not apply to California’s “triad” sentencing system, finding that the midterm is the presumptive term without making any additional findings. Further, the issue was not waived because Blakely was decided after Butler was sentenced. The trial court violated Blakely by relying on four “non-recidivist” factors to impose the upper term for the kidnap. However, reversal was not required. It was not reasonably probable that the trial court would have imposed a lesser sentence had it realized that some of the aggravating factors it relied on were not valid. The fifth factor – that Butler had a record of numerous and increasingly serious prior convictions – was a “recidivist factor,” and was properly used to support the upper term. The trial court specifically found that there were no mitigating factors, and that any one of the aggravating factors in and of themselves outweighed the lack of mitigating factors. Since the court clearly expressed its intent to impose the upper term even if only one aggravating factor was improper, reversal was not required.