Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING: Petition for Writ of Habeas Corpus. Los Angeles County Super. Ct. No. BA187683, Curtis B. Rappe, Judge.
Jill Ishida, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Margaret E. Maxwell, Deputy Attorneys General, for Respondent.
PERLUSS, P. J.
Kahlil Ali Tomlin has petitioned this court for a writ of habeas corpus, arguing the trial court’s imposition of an upper term sentence following his conviction for assault with a firearm with a finding he had personally used a firearm in the commission of the offense violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution as articulated in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). In light of the California Supreme Court’s recent decision in In re Gomez (2009) 45 Cal.4th 650 (Gomez) holding Cunningham applies on collateral review of a judgment, like Tomlin’s, that became final before Cunningham was decided but after Blakely was decided, we agree. Accordingly, we grant the petition, vacate the sentence originally imposed and direct the trial court to resentence Tomlin in accordance with the principles announced in Cunningham, People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at Tomlin’s second jury trial established Benjamin White drove to Tomlin’s house after his car windows had been broken by Tomlin and demanded payment for the damage. White became angry and broke several windows in the house with a metal object (described as a “kickstand”) when Tomlin failed to respond to his demands. As White was returning to his car, Tomlin shot him once with a shotgun, hitting White in the head and upper body. Tomlin admitted breaking the windows of White’s car but claimed White was the aggressor. Tomlin testified White came to his house and shot out his windows with an automatic pistol while he was inside. According to Tomlin, he shot back in self-defense.
A jury acquitted Tomlin at his initial trial of attempted murder but was unable to reach a verdict on the lesser included offense of assault with a firearm. The court declared a mistrial and reset the matter for trial on the aggravated assault charge.
The jury convicted Tomlin of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) with a true finding he had personally used a firearm in committing the offense. (§ 12022.5, subd. (a).) He was sentenced to the upper term of four years for aggravated assault plus a consecutive upper term of 10 years for the firearm-use enhancement.
Statutory references are to the Penal Code.
Section 245, subdivision (a)(2), authorizes a state prison term of two, three or four years for a person who commits an assault with a firearm.
Section 12022.5, subdivision (a), authorizes imposition of an additional and consecutive term of imprisonment of three, four or 10 years if a firearm was personally used in the commission of the charged felony. Section 12022.5, subdivision (d), expressly provides the additional term shall be imposed for any violation of section 245 if a firearm was used notwithstanding the fact that use of a firearm is an element of that offense.
In imposing sentence the trial court noted as factors in mitigation Tomlin’s youth (he was 20 years old at the time of sentencing), the fact he was serving in the Marine Corps at the time of the offense and his lack of an adult criminal record. In aggravation the court observed Tomlin had a prior sustained juvenile petition for battery with serious bodily injury, his prior juvenile case and the current case demonstrated a “clear pattern” of violent conduct, Tomlin had used a gun and his offenses showed a failure to manage anger without endangering others. The court determined the aggravating factors outweighed the mitigating factors and selected the upper term of four years for the aggravated assault conviction. The court further found the upper term of 10 years was appropriate for the firearm-use enhancement because Tomlin had “shot a man in the back... in a position where he was not entitled to use self-defense.” Judgment was entered on October 13, 2000.
Tomlin was one month shy of this 19th birthday at the time of the offense.
On October 27, 2000 Tomlin filed a notice of appeal from the judgment. In his appellate briefs in this court, Tomlin argued the trial court had committed various state law sentencing errors. While Tomlin’s direct appeal was pending, the United States Supreme Court decided Blakely, supra, 542 U.S. 296, in which the Court reaffirmed its holding 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 must be submitted to a jury, and proved beyond a reasonable doubt’” (Blakely, at p. 301), and further held “the prescribed statutory maximum” 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.” (Id. at p. 303.) We requested and received supplemental briefing on the applicability of the constitutional principles articulated in Blakely to the trial court’s imposition of the upper terms on both the aggravated assault and firearm-use enhancement.
Before we filed our opinion in Tomlin’s appeal, the California Supreme Court decided People v. Black (2005) 35 Cal.4th 1238 (Black I), holding the trial court’s identification of aggravating factors and imposition of an upper-term sentence under California’s determinate sentencing law do not violate a defendant’s constitutional right to a jury trial under Blakely. The Court explained, “The jury’s verdict of guilty on an offense authorizes the judge to sentence a defendant to any of the three terms specified by statute as the potential punishments for that offense, as long as the judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules.” (Id. at pp. 1257-1258.)
In light of the decision in Black I, after rejecting Tomlin’s state law sentencing arguments, we affirmed his conviction and upheld the sentence, concluding there was no Blakely error in imposing the upper term sentences for the underlying offense and firearm-use enhancement. (People v. Tomlin, Aug. 23, 2005, B145600 [nonpub. opn.].) Tomlin did not file a petition for review in the California Supreme Court and did not petition the United States Supreme Court for a writ of certiorari. The judgment in his case became final on October 2, 2005.
DISCUSSION
1. Cunningham and Post-Cunningham Decisions from the California Supreme Court
In Cunningham, supra, 549 U.S. 270, decided on January 22, 2007, more than 14 months after the judgment in Tomlin’s case became final, the United States Supreme Court reaffirmed Apprendi v. New Jersey, supra, 530 U.S. 466and Blakely, supra, 542 U.S. 296, vigorously disagreed with the decision in Black I, supra, 35 Cal.4th 1238 and held California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) by a preponderance of the evidence that subject a defendant to the possibility of an upper term sentence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, at p. 281.)
Following its decision in Cunningham, the United States Supreme Court vacated the judgment in Black I, supra, 35 Cal.4th 1238, and remanded the case to the California Supreme Court for further consideration in light of Cunningham. In Black II, supra, 41 Cal.4th 799 the Court held the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities “renders a defendant eligible for the upper term sentence” under the determinate sentencing law. (Id. at p. 812.) “The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating factors are found by the trial court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
In addition, relying on United States Supreme Court decisions holding the trial court may increase the penalty for a crime based upon the defendant’s prior convictions without submitting that question to a jury (see Cunningham, supra, 549 U.S. at p. 282; Blakely, supra, 542 U.S. at p. 301; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [118 S.Ct. 1219, 140 L.Ed.2d 350] [“recidivism... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence”]), the Black II Court held that aggravating factors relating to a defendant’s prior convictions are beyond the reach of Cunningham. “As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.... [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at pp. 819-820.) Accordingly, the defendant’s criminal history established an aggravating circumstance under California Rules of Court, rule 4.421(b)(2) —“defendant’s prior convictions... are numerous or of increasing seriousness”—“that independently satisf[ies] Sixth Amendment requirements and render[s] him eligible for the upper term.” (Black II, at p. 820.)
References to a rule or rules are to the California Rules of Court.
The broad scope of the exception to the jury trial requirement for recidivism-related aggravating factors identified in the California Rules of Court suggested in Black II was confirmed the following year in People v. Towne (2008) 44 Cal.4th 63 (Towne). In Towne the Supreme Court held the exception includes not only the finding a defendant had served a prior prison term or his or her prior convictions are numerous or of increasing seriousness but also the finding the defendant was on probation or parole at the time the current offense was committed and the determination the defendant’s prior performance on probation or parole was unsatisfactory, so long as that determination is based on the defendant’s prior record of one or more convictions. (Towne, at pp. 70-71, 82.)
2. Cunningham Applies Retroactively to Cases Not Final at the Time of the Blakely Decision
Earlier this year, in Gomez, supra, 45 Cal.4th 650 the Supreme Court rejected the Attorney General’s argument—repeated in his return to Tomlin’s petition for writ of habeas corpus—that Cunningham, supra, 549 U.S. 270 established a new rule for purposes of retroactivity analysis and applies only to cases not yet final as of the date of the Cunningham decision. “We have little doubt that, if faced with the issue, the United States Supreme Court would conclude that Cunningham did not break new ground and that it was ‘dictated by’ Blakely—‘precedent existing at the time [petitioner’s] conviction became final.’” (Gomez, at p. 656.) “Accordingly, Cunningham applies retroactively to any case in which the judgment was not final at the time the decision in Blakely was issued.” (Id. at p. 660.)
3. The Imposition of the Upper Term for Aggravated Assault and the Firearm-use Enhancement Based on Findings Not Made by a Jury Violated Tomlin’s Sixth Amendment Jury-trial Right as Interpreted in Cunningham
In imposing the upper term for assault with a firearm, the trial court relied on three aggravating factors: (1) Tomlin had used a gun; (2) Tomlin’s prior sustained juvenile petition for battery with serious bodily injury and the current offense demonstrated a pattern of violent conduct; and (3) his offenses showed a failure to manage anger without endangering others. In imposing the upper term for the firearm-use enhancement, the court relied on the violent nature of Tomlin’s offense, as well as the victim’s apparent vulnerability, noting Tomlin had shot him in the back under circumstances that would not justify the use of lethal force in self-defense. Applying Cunningham, supra, 549 U.S. 270 as interpreted by Black II, supra, 41 Cal.4th 799, to these sentencing determinations, the question before us is whether any of these aggravating factors was established in accordance with the requirements of the Sixth Amendment (that is, found to be true by a jury beyond a reasonable doubt, admitted by the defendant or included within the “recidivism” exception recognized in Black II and Towne.)
As we indicated when affirming Tomlin’s sentence on his direct appeal, the trial court’s reliance on Tomlin’s use of a firearm to impose the upper term sentence for assault with a firearm in this case—when the additional firearm-use enhancement was also imposed—was improper: “[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b); see rule 4.420(c) [“[t]o comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so”]; see also rule 4.420(d) [“[a] fact that is an element of the crime may not be used to impose the upper term”].)
As to the second of the aggravating factors or circumstances, Tomlin argues a sustained juvenile petition does not fall within the prior conviction or recidivism-related exception to Cunningham confirmed in Black II, supra, 41 Cal.4th 799 and Towne, supra, 44 Cal.4th 63 because there is no right to a jury trial in juvenile proceedings. According to Tomlin, “[n]onjury juvenile adjudications thus do not satisfy a prerequisite for the prior conviction exception—namely, that the defendant already have had an opportunity to dispute the state’s allegations before a jury.” (Cf. People v. Nguyen, review granted July 30, 2007, S154847 [presenting question whether a prior juvenile adjudication for a criminal offense can constitutionally subject a defendant to the provisions of the Three Strikes Law].) Accordingly, Tomlin argues it was constitutional error for the trial court to rely on his prior sustained juvenile petition as a basis for imposing the upper term for aggravated assault. We agree the trial court’s use of this second factor was impermissible, but not for the reason advanced by Tomlin.
As we explained in our opinion affirming Tomlin’s conviction and sentence on his direct appeal, and as noted by the Attorney General in his return to Tomlin’s petition, the trial court did not impose the upper term simply because Tomlin had one prior serious juvenile adjudication, for which he was ordered home on probation, but because, in the court’s view, he had engaged in a pattern of violent behavior of increasing seriousness, starting with his juvenile offense. (See rule 4.421(b)(2) [then rule 421(b)(2)] [“defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness”].) The Supreme Court in Black II held the determination a defendant had suffered prior adult convictions and/or sustained juvenile petitions that are numerous or of increasing seriousness, as described by rule 4.421(b)(2), is an aggravating circumstance properly considered by the trial court based on the defendant’s criminal records under the recidivism exception to Blakely and Cunningham. But the Supreme Court’s holding on this point, as well language of rule 4.421(b)(2) itself, are expressly limited to a consideration of the defendant’s prior convictions or sustained juvenile petitions. (See Black II, supra, 41 Cal.4th at pp. 819-920 [“[t]he determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged” (italics added)].) Of course, by its very nature a “prior conviction” or “recidivism-related” exception to the Blakely/Cunningham jury trial requirement—“defendant’s criminal history” (Black II, at p. 818)—must be limited to a defendant’s past offenses. (See Apprendi v. New Jersey, supra, 530 U.S. at pp. 487-488 [explaining that recidivism is distinguishable from other factors used to enhance punishment because (1) recidivism traditionally has been used by sentencing courts to increase the length of an offender’s sentence, (2) recidivism does not relate to the commission of the charged offense and (3) prior convictions result from proceedings that include substantial protections].) Here, Tomlin had only one prior sustained juvenile delinquency petition and no adult criminal convictions. Necessarily, this record is insufficient to establish he had suffered prior convictions or had sustained juvenile delinquency petitions that are either numerous or of increasing seriousness.
Although the United States Supreme Court has consistently stated the right to a jury trial does not apply to the fact of a prior conviction, the California Rules of Court do not identify a prior adult conviction or sustained juvenile delinquency petition, standing alone, as a factor properly considered as a circumstance in aggravation. Rather, rule 4.421(b)(3) refers to service of a “prior prison term”; and, as discussed, rule 4.421(b)(2) concerns prior adult convictions or sustained juvenile petitions that “are numerous or of increasing seriousness.”
Although the trial court did not use the term “increasing seriousness” or refer specifically to former rule 421(b)(2) (or to any other provision of the California Rules of Court, for that matter), the People in their sentencing memorandum and in their brief to this court on Tomlin’s direct appeal, as well as in their return to the petition for writ of habeas corpus, specifically argued that rule identified a factor in aggravation applicable to Tomlin.
To be sure, the violent nature of the current offense, whether considered alone or together with the use of force or violence in a defendant’s prior criminal offenses, is a circumstance in aggravation under both rule 4.421(a)(1) (current crime “involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness”) and rule 4.421(b)(1) (“defendant has engaged in violent conduct that indicates a serious danger to society”). In fact, the trial court alluded to these concerns in identifying its third factor for imposing the upper term for aggravated assault—Tomlin’s failure to manage his anger without endangering others—and when explaining its reason for imposing the upper term for the firearm-use enhancement—Tomlin had shot his victim in the back. But these aggravating circumstances, as well as the victim’s vulnerability, which the trial court also mentioned (see rule 4.421(a)(3) [“victim was particularly vulnerable”]), unlike those related to a defendant’s recidivism, must either be found true by a jury beyond a reasonable doubt or admitted by the defendant to be considered by the trial court when imposing an upper term sentence. (Gomez, supra, 45 Cal.4th at p. 660 [“[i]mposition of the upper term violates the Sixth Amendment under Blakely and Cunningham only if no legally sufficient aggravating circumstance has been found to exist by the jury or been established under one of the exceptions to Blakely’s jury trial requirement”]; People v. Sandoval, supra, 41 Cal.4th at pp. 836-838 [defendant’s Sixth Amendment rights violated by imposition of upper term sentence based on aggravating circumstance—here, the fact the victim was particularly vulnerable—neither admitted by defendant nor falling within the recidivism exception]; see Cunningham, supra, 549 U.S. at p. 281; Black II, supra, 41 Cal.4th at pp. 815-816.)
In People v. Sandoval, supra, 41 Cal.4th at page 838, a companion case to Black II, supra, 41 Cal.4th 799, the Supreme Court held, if no aggravating factors have been found consistent with Sixth Amendment principles, the “denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].” “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Sandoval, at p. 839; see Gomez, supra, 45 Cal.4th at p. 660 [“even if error is established, resentencing is not required if the record demonstrates the error was harmless beyond a reasonable doubt”].) However, the Court cautioned, “[T]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. The sentencing rules that set forth aggravating circumstances were not drafted with a jury in mind.” (Sandoval, at p. 840.)
The non-recidivism-related factors identified by the trial court in imposing the upper terms on Tomlin in this case rest on the same type of vague or subjective standard at issue in Sandoval. Although a jury might well have agreed with the trial judge’s evaluation of the violent nature of Tomlin’s past and present conduct and the vulnerability of his victim, Benjamin White, from this record we simply cannot conclude the jury would have found, beyond a reasonable doubt, the existence of the aggravating factors identified by the court, particularly when we consider Tomlin’s acquittal at the first trial on the more serious charge of attempted murder. (See People v. Sandoval, supra, 41 Cal.4th at p. 843 [that jury found defendant guilty of manslaughter, not murder, means it might not have agreed with trial court’s assessment of aggravating factor relating to defendant’s cruelty or viciousness].) Accordingly, the Sixth Amendment error in this case was not harmless, and Tomlin must be resentenced in a manner that is consistent with constitutional requirements as articulated in Cunningham and Black II. (See Sandoval, at pp. 843, 858.)
4. Tomlin Must Be Resentenced Under a Constitutional Sentencing Scheme with Full Trial Court Discretion To Impose the Upper, Middle or Lower Term for the Aggravated Assault but More Limited Discretion As to the Firearm-use Enhancement
In Sandoval, supra, 41 Cal.4th at pages 845 to 852, after surveying then-recently enacted legislation amending California’s determinate sentencing law, the Supreme Court held, even if those amendments do not apply by their terms to cases in which an unlawful sentence was originally imposed prior to the legislation’s effective date, a defendant who has established prejudicial Sixth Amendment error under Cunningham and Black II is properly resentenced under a reformed sentencing scheme in which the trial court has full discretion to impose the upper, middle or lower term “unconstrained by the requirement that the upper term may not be imposed unless an aggravating circumstances is established.” (People v. French (2008) 43 Cal.4th 36, 45.) “Under [the Supreme Court’s] holding in Sandoval, if a defendant is successful in establishing Cunningham error on appeal, the trial court is not precluded from imposing the upper term upon remand for resentencing. The defendant is entitled only to be resentenced under a constitutional scheme and is afforded the opportunity to attempt to persuade the trial court to exercise its discretion to impose a lesser sentence.” (Id. at pp. 45-46.)
As we explained in People v. Lincoln (2007) 157 Cal.App.4th 196, 204 to 205, however, the reformed sentencing scheme described in Sandoval applies only to the selection of the appropriate term of imprisonment for substantive offenses, and not to imposition of sentencing enhancements pursuant to section 1170.1, subdivision (d) that, like section 12022.5, subdivision (a), are punishable by one of three terms: “The Supreme Court in Sandoval performed what may be called a limited judicial reformation of section 1170 with respect to defendants whose cases were remanded for resentencing. The reformed sentencing scheme mirrors the Legislature’s urgency legislation signed by the Governor on March 30, 2007, in which section 1170, subdivision (b) was amended to eliminate the statutory presumption for the middle term.... Rather than invent a system for charging and trying aggravating factors by jury under the reasonable doubt standard, the Legislature removed the statutory presumption of the middle term.... [¶] The urgency legislation, however, did not change section 1170.1, subdivision (d), which establishes the same presumption of the middle term for enhancements that the former section 1170, subdivision (b) did for sentencing on criminal offenses.... This provision suffers from the identical constitutional infirmities identified by the United States Supreme Court in Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856], and is similarly unconstitutional. The Legislature has taken no step to amend this provision to render it compliant with the Sixth Amendment, and the California Supreme Court did not reform it in Sandoval, supra, 41 Cal.4th at pages 843 through 852. [¶] We cannot profess to know whether the Legislature failed to remove the presumption of the middle term with respect to enhancements deliberately or inadvertently. While it may be that the omission was inadvertent in the rush to respond to the Supreme Court’s decision in Cunningham..., we cannot presume that to be the case in view of the fact that the Legislature has taken no action to remedy any oversight in the intervening months since the urgency legislation was enacted. When the Legislature’s intent is not clear, judicial reformation of a statute is not an option. (Sandoval, supra, 41 Cal.4th at p. 844 [‘we have the authority to revise the [determinate sentencing law] in a manner that avoids constitutional problems, if we conclude that the Legislature’s intent clearly would be furthered by application of the revised version rather than by the alternative of invalidation’].) The Sandoval reformation does not address sentencing on sentence enhancements punishable by three terms and in the absence of legislative action, we cannot extend the reformation to this case.” (Lincoln, at pp. 205-206.)
This court’s decision in People v. Lincoln, supra, 157 Cal.App.4th 196, was filed in November 2007. In the nearly 18 months since that decision was issued, the Legislature still has not amended the language in section 1170.1, subdivision (d), to remove the presumption of the middle term with respect to enhancements. This continued inaction by the Legislature reinforces our unwillingness to presume the omission was inadvertent.
Accordingly, we grant Tomlin’s petition for writ of habeas corpus, vacate the sentence imposed and return the cause to the trial court for resentencing. In resentencing Tomlin on the substantive offense of assault with a firearm, the trial court must proceed according to the Sandoval resentencing scheme. (Sandoval, supra, 41 Cal.4th at pp. 843-852.) With respect to resentencing on the section 12022.5, subdivision (a) enhancement, because no legally sufficient aggravating circumstance has been found to exist by the jury or been established under one of the exceptions to the Cunningham/Blakely jury trial requirement, the trial court must select either the middle (four year) or lower (three year) term of imprisonment.
DISPOSITION
The petition for writ of habeas corpus is granted. The sentence imposed on October 13, 2000 is vacated, and the trial court is directed to resentence Tomlin in accordance with the principles articulated in Cunningham, supra, 549 U.S. 270, Black II, supra, 41 Cal.4th 799 and People v. Sandoval, supra, 41 Cal.4th 825 and the views set forth in this opinion.
I concur: JACKSON, J.,
ZELON, J. concurring.
I fully concur with the decision to grant the writ of habeas corpus and with the majority’s analysis of the issues, except with respect to its conclusion concerning the use of the prior sustained juvenile petition as a basis for imposing an upper term sentence. While I agree that it was error to rely on that petition for the reasons stated, I believe it was also error on the basis asserted by Tomlin: that a juvenile adjudication cannot be used as the basis for an upper term sentence.
For the reasons set forth in the dissenting opinion in People v. Del Rio (2008) 165 Cal.App.4th 439,441-444, “a defendant has a fundamental right to have a jury determine the facts related to a prior conviction. If that determination was not made at the time of the poor performance, it must be made at the time that performance is used in sentencing for a new offense. In either event, it must be made.” (Id. at p. 443.) Because there is no right to a jury trial in juvenile adjudications, that determination has never been made in this case.