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Name: People v. Diaz
Case #: B185735
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 04/25/2007

Resentencing was required where judge engaged in additional factfinding in order to find that aggravating factors justified the upper term. Appellant was convicted of multiple sex offenses. The trial court sentenced appellant to upper terms on three sex offense convictions, finding that the four factors in aggravation outweighed the one mitigating factor. It also imposed consecutive terms for two counts because the crimes were committed on separate occasions. While the case was pending on appeal, the United States Supreme Court issued its opinion in Cunningham, and the parties submitted letter briefs on the impact of that case. Appellant contended that the three upper-term sentences were improper under Apprendi, Blakely, and Cunningham, and that the imposition of consecutive terms on counts 13 and 14 were unconstitutional. The prosecutor argued that any Apprendi/Blakely/Cunningham objections were waived, and also that the sentence was constitutionally valid. The appellate court rejected the waiver argument. Even if the forfeiture doctrine could reasonably be applied in this constitutional context, an objection below would have been futile, as the California Supreme Court had already decided People v. Black. In light of Cunningham, given the absence of jury findings on the aggravating factors made beyond a reasonable doubt, the imposition of upper-term sentences violated the Sixth Amendment. In order for the court to find each of the four aggravating factors it believed present (the crime involved a high degree of cruelty, the victim was particularly vulnerable, the crime involved sophistication and planning, and the conduct was violent indicating that appellant was a serious danger to society), the court necessarily engaged in additional factfinding beyond the facts found true by the jury. As these factors were neither admitted nor found true by the jury, they could not be used to increase the sentence beyond the midterm. Since it cannot be concluded that the error was harmless, reversal was required. However, the Cunningham analysis did not apply to the imposition of consecutive counts. Although section 667.6 subdivision (d) did require judicial factfinding, because that factfinding did not increase the statutory maximum sentence, there was no Apprendi/Blakely/Cunningham error in the imposition of full consecutive sentences. Since the trial court could not impose upper terms, there was no need for remand. The judgment was therefore modified to impose the middle terms.