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Name: People v. Lincoln
Case #: B188042
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 11/27/2007

Remand was required where upper-term sentences imposed based on facts not found true by the jury. Lincoln was convicted of three counts of attempted manslaughter and three counts of assault, with use and g.b.i. enhancements. He was sentenced on all six counts and enhancements, with the sentences for the assault counts and enhancements stayed pursuant to Penal Code section 654. On appeal, the appellate court reversed the manslaughter convictions and remanded with instructions that if he was not retried or was acquitted of manslaughter, the court should lift the 654 stay on the assault sentence. After the prosecutor chose not to retry Lincoln, the trial court did not just lift the stay, but instead revisited the three previously imposed sentences, ordering that they be served consecutively, and altering the sentences on two of the three counts to upper terms, citing as reasons the circumstances of the offense, the vulnerability of the victims, the planning, and the “inherent high risk” to the victim on the firearm use enhancement. Lincoln then appealed, contending that the trial court lacked jurisdiction on remand to modify the sentence to run the terms consecutively, and that the imposition of upper term sentences violated his rights under Blakely. The appellate court had rejected the Blakely argument in light of Black, but agreed that the trial court did not have the authority on remand to sentence consecutively. Next, the California Supreme Court then directed the appellate court to vacate its prior decision and reconsider the cause in light of Black II and Sandoval. Pursuant to those decisions, the appellate court here remanded the matter for resentencing to exercise “the full array of discretionary choices for resentencing.” The maximum sentence must be based on facts reflected in the jury verdict or admitted by the defendant. Here, the record did not establish that the victim was particularly vulnerable or that there was planning involved. Further, the fact that there was g.b.i. inflicted does not establish that there was a high risk to the victim. In order for the trial court to find each of the aggravating factors, the court engaged in additional fact finding beyond the facts found by the jury, which was not harmless error.