P. v. Williams

Filed 1/6/05 P. v. Williams CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY LEE WILLIAMS,
Defendant and Appellant.
D043512
(Super. Ct. No. SCD177453)
APPEAL from a judgment of the Superior Court of San Diego County, Christine
V. Pate, Judge. The sentence is vacated; in all other respects the judgment is affirmed.
A complaint charged Anthony Lee Williams with one count of possession of
narcotics paraphernalia (Health & Saf. Code, § 11364), one count of possession of
marijuana (Health & Saf. Code, § 11357, subd. (b)), and one count of receiving stolen
property (Pen. Code, § 496, subd. (a)). Williams entered a negotiated guilty plea to
receiving stolen property and the remaining counts were dismissed. The court sentenced
him to prison for the three-year upper term, suspended execution of the sentence, and

-- 1 of 7 --

2
placed him on five years' probation on the condition he serve 365 days in custody.
Williams admitted he violated his probation in two unrelated cases. Williams appeals,
contending the trial court violated his constitutional rights under the Fifth, Sixth, and
Fourteenth Amendments because (1) Williams was not afforded a jury trial to establish
and did not admit the aggravating facts used to support the upper term, and (2) the court
used the wrong burden of proof to assess the facts at issue.
FACTS
On September 13, 2003, police officers smelled a strong odor of marijuana
emanating from Williams's parked van, in which Williams and two other men were
sitting. Police officers detained all three men and searched the van. They found a
marijuana pipe, a glass drug pipe, and an Altoids box containing marijuana. They also
found stolen property, including a laptop computer, various forms of identification, a
credit card, checkbooks and cameras. In a statement to police officers, Williams said
Harris, one of the other men detained, possessed the laptop and a checkbook when he
entered Williams's van. Williams said he assumed the laptop was stolen but it was none
of his business.
DISCUSSION
Williams contends the trial court violated his rights under the Fifth, Sixth and
Fourteenth Amendments because he was not afforded a jury trial on the aggravating facts
used to support the upper term. In Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct.
2531] (Blakely), the United States Supreme Court held, " '[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

-- 2 of 7 --

3
maximum [of the standard range] must be submitted to a jury, and proved beyond a
reasonable doubt.' " (Id. at p. 2536.)1 Under California's determinate sentencing law,
where a penal statute provides for three possible prison terms for a particular offense, the
court is required to impose the middle term unless it finds, by a preponderance of the
evidence, that the circumstances in aggravation outweigh the circumstances in mitigation.
(Cal. Rules of Court, rule 4.420.) Blakely is implicated here because the maximum
penalty the court could impose under California law without making factual findings in
addition to those found by the jury is the middle term.
I
The trial court expressed the following reasons for imposing the upper term:
"Reading the report and the number of victims and the length of time that Mr. Williams
has been on a criminal record which goes back to 1990, I see that he has had little time in
custody up until he was ordered 365 days in 1996; but that was also suspended. And then
in January of 2000, he was given his first 365 days. Where it has remained even though
he has violated his probation. Your record concerns me, sir. Also the report concerns me
because although based on your history at least you should understand the significance of
whether it's a drug or alcohol problem, you apparently haven't really addressed that
problem and yet have reoffended. So looking at your package which is the new case that
1 The issue of whether Blakely precludes a trial court from making findings on
aggravating facts in support of an upper term is currently under review by the California
Supreme Court. (People v. Towne, review granted July 14, 2004, S125677; People v.
Black, review granted July 28, 2004, S126182.)

-- 3 of 7 --

4
we have plus the two probation violations are the 365 days that you previously served
and you actually have sufficient credits in that so that you're sort of maxed out there,
what I intend to do is I'm going to what I call hang three years over you. You're either
going to get it this time, sir, or you're going to prison. There's just no two ways about it.
I would impose three years which is the upper term for each of your cases, I would run
them concurrently and I will suspend the imposition on the condition that you comply
with probation, all probations including your two trailing revocations would terminate in
[five] years. I'm really putting the pressure on you."
The trial court thus relied on several aggravating factors as the basis for its
decision to impose the upper term for receiving stolen property. Under Blakely, the
Constitution requires a jury to determine any factor " 'the law makes essential to the
punishment' " other than the fact of the defendant's prior conviction (Blakely, supra, 124
S.Ct. at p. 2537.) Constitutional considerations also do not require the fact the defendant
was on probation to be found by a jury. However, other factors that increase the penalty
for a crime beyond the statutory maximum must be submitted to the jury and proved
beyond a reasonable doubt. (Blakely, supra, 124 S.Ct. at p. 2536.) The trial court relied
in part on aggravating factors not found beyond a reasonable doubt by the jury, including
the number of victims, the length of Williams's criminal record and a possible drug or
alcohol problem. Accordingly, the court's decision to select the upper term for the
receiving stolen property conviction violated Williams's Sixth Amendment right to a jury
trial under Blakely.

-- 4 of 7 --

5
II
The People argue that even if the use of certain aggravating factors was improper
under Blakely, the trial court was entitled to rely on the fact of Williams's prior
conviction and the fact Williams was on probation at the time of the current offense.
Under California law, a trial court may rely on a single aggravating factor as a basis for
imposing an upper term, so long as that factor outweighs any circumstances in mitigation.
Here, there are two aggravating factors not requiring a jury finding and no factors in
mitigation. The People argue Williams has at most demonstrated harmless error because
there were non-Blakely aggravating factors and no mitigating factors, and the trial court
would have imposed the upper term without consideration of the Blakely aggravating
factors.
The constitutional harmless error standard of Chapman v. California (1967) 386
U.S. 18, 24 applies to Blakely errors. Applying that test, the court must determine
whether the failure to obtain a jury determination as to the aggravating factors was
harmless beyond a reasonable doubt. (Chapman, supra, at p. 24.) Therefore, before a
constitutional error can be held harmless, the People must prove beyond a reasonable
doubt that the error complained of did not contribute to the imposition of the upper term.
(Ibid.) The trial court expressed both Blakely and non-Blakely reasons for imposing the
upper term. We are unwilling to find beyond a reasonable doubt that even if the trial
court judge had not considered the impermissible factors, she would have nonetheless
selected the upper term.

-- 5 of 7 --

6
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court for further
proceedings in accordance with this opinion. In all other respects the judgment is
affirmed.
McDONALD, J.
I CONCUR:
McCONNELL, P. J.

-- 6 of 7 --

BENKE, J., dissenting.
For the reasons expressed in this court's opinion in People v. Wagener (2004) 123
Cal.App.4th 424, I would conclude the sentencing here was proper. If our Supreme
Court concludes otherwise, appellant may obtain relief by way of writ of habeas corpus.
BENKE, J.

-- 7 of 7 --