P. v. Willis

Filed 5/30/07 P. v. Willis CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RODNEY WAYNE WILLIS,
Defendant and Appellant.
D047786
(Super. Ct. No. SCD179844)
APPEAL from a judgment of the Superior Court of San Diego County, Laura P.
Hammes, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
After a bifurcated jury trial, Rodney Wayne Willis was convicted of petty theft
with a prior theft-related conviction.1 (Pen. Code,2 §§ 484, subd. (a), 666.) Willis then
admitted as true, allegations he had suffered three separate prior prison term convictions
1 Before trial, Willis stipulated that he had prior theft-related convictions for grand
theft, robbery, and burglary. The jury subsequently found him guilty of petty theft.
2 All statutory references are to the Penal Code unless otherwise specified.

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(§ 667.5, subd. (b)) and two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12).
After striking one strike conviction, the court sentenced Willis to a total term of nine
years, consisting of the upper three-year term for the petty theft with a prior doubled
under the Three Strikes law, plus three consecutive one-year terms for the prior prison
term enhancements.
Willis appeals, contending the trial court prejudicially erred by failing to instruct
the jury on attempted theft and violated his constitutional rights by imposing an upper
term sentence contrary to the holding in Blakely v. Washington (2004) 542 U.S. 296
(Blakely). As to this latter issue, the parties have filed supplemental briefing on the
recent United States Supreme Court decision in Cunningham v. California (2007) 549
U.S. ___ [127 S.Ct. 856] (Cunningham) that determined California's Determinate
Sentencing Law (DSL), which permitted a court to impose an upper term sentence based
on aggravating facts not found true by a jury or beyond a reasonable doubt, is
unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi) and Blakely. Although we find no prejudicial error to reverse Willis's
conviction, we reverse his sentence and remand for resentencing in light of Cunningham.
FACTUAL BACKGROUND
Willis does not challenge the sufficiency of the evidence presented at trial to
support his conviction. The evidence at trial shows that on January 14, 2004, Loss
Prevention Officer Geno Kintzele noticed a man, later identified as Willis, in the College
Grove Wal-Mart store in San Diego, carrying a blue Wal-Mart bag that contained a

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California king bed sheet set with a pink Wal-Mart return sticker on it.3 Kintzele
watched as Willis removed the sheet set from his bag, put it on a shelf, and then take a
love seat slipcover from the shelf and put it in his bag after placing the pink return sticker
on it. Kintzele then saw Willis walk toward the customer service counter where returns
were taken.
Suspicious of Willis's behavior, Kintzele contacted the customer service manager,
Cynthia Moreno, and asked her to let him know what Willis was doing at the counter.
When Moreno advised Kintzele that Willis was attempting to return the slipcover,
Kintzele authorized her to proceed with the return transaction, but asked her to stall the
transaction so he would have time to contact Wal-Mart security. After about 10 minutes,
Moreno completed the return-refund transaction and gave Willis a Wal-Mart gift card for
$75.38, which was the amount for the slipcover plus tax.4 Wal-Mart security detained
Willis at the register with the gift card and escorted him to the store's security office
where the police were called.
Responding San Diego Police Officer John William Jillard arrested Willis and
talked with him after Willis waived his rights under Miranda v. Arizona (1966) 384 U.S.
436. Willis told Jillard that he had gone into the Wal-Mart store intending to return a
sheet set he had received as a gift. At some point, a pink Wal-Mart return sticker was
placed on the sheet set and he went to the area of the store where they were kept. When
3 Customers returning items to the store would obtain a pink return sticker from a
store greeter at the entrance to the store.
4 The original sheet set had only been worth about $25.

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he saw a loveseat slipcover that was more expensive than the sheet set, he transferred the
return sticker from the sheet set to the slipcover and proceeded to the customer service
desk to obtain a store credit for the slipcover. Willis said he had gotten the idea to put the
return sticker on the slipcover when he was inside the store. Willis confirmed his
statement was accurate when Jillard repeated it to him several hours later at the police
station when Jillard was writing his report about the incident.
In addition to the above evidence, the receipts from the Wal-Mart cash register
where Willis obtained the refund were entered into evidence. The receipts indicated that
Willis's initial refund had been cancelled and that two transactions had actually occurred.
Although Moreno could not remember that there were two transactions, she testified she
immediately cancelled the gift card so it would not be worth anything.
DISCUSSION
I
REFUSAL TO INSTRUCT ON ATTEMPTED THEFT
In limine, the court discussed with the parties the legal issue of whether this case
involved "an attempted petty theft, which would not permit the prior and turn it into a
felony, or whether it would be, indeed, a petty theft with a prior based on these facts of a
refund attempt at the store that was actually completed while under surveillance." In
looking at the law, the court noted that in the past this factual situation would only "pass
muster as an attempt petty theft," but that the California Supreme Court case of People v.
Davis (1998) 19 Cal.4th 301 (Davis) appeared to be dispositive of the issue, indicating
"that this is not a theft of false pretenses but rather a straight larceny that takes place as

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soon as an item is taken off the shelf and moved toward the cash register for purposes of
an improper refund." The court encouraged counsel to take the afternoon to research the
matter and come back the next morning to discuss Davis and any other evidentiary
matters.
The next day, the trial judge again took up the matter, reviewing the prosecutor's
proposed instruction for the crime charged in this case. The judge noted that it was her
understanding that "the Davis case controls the issues in this case. In fact, it is on all
fours with respect to the proposed evidence." The judge explained that she had looked up
the matter in Witkin "under the larceny section" and read that portion into the record
because she thought "it's really important that we all understand . . . what the law is and
what these instructions must clearly convey to the jury, without directing a verdict. . . ."
The judge stressed that the instructions should make clear that the "intent to permanently
deprive includes an intent to retain the property . . . and return it, only upon certain
conditions," using the language of Davis, supra, 19 Cal.4th 301.
Although defense counsel had not found any recent law contrary to Davis, supra,
19 Cal.4th 301, he argued the situation was different in this case because Willis had come
into Wal-Mart and had exchanged property for property belonging to him. Counsel
further requested the court to exclude any evidence after Willis picked up the slipcover
and did "a bit of traversing" if the court were taking the Davis position on larceny that it
is completed at the point Willis picked up and carried the merchandise. The court denied
such request "because it's circumstantial evidence of what was in his mind at the time that
he brought [the merchandise] up to the cash register."

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The prosecutor referred the court to the case of People v. Shannon (1998) 66
Cal.App.4th 649 (Shannon) regarding the asportation or removal element for larceny
from a store, noting that because " '[o]ne need only take possession of the property,
detaching it from the store shelves or other location, and move it slightly with the intent
to deprive the owner of it permanently,' " the instruction should also include similar
language. The court agreed, stating that by the end of the case there should be
"instructions that will more thoroughly define the intent to deprive and the taking aspect
of it and the consent aspect of it . . . in the larceny."
Near the conclusion of the trial, the court again reviewed the jury instructions to
be given for petty theft in this case and overruled defense counsel's request that the
regular CALJIC instruction for straight larceny be given, noting that the California
Supreme Court in Davis, supra, 19 Cal.4th 301, had carefully "laid out the [six] elements
of theft by larceny" as charged in this case. After further discussion on various
modifications to the proposed instructions and denial of the defense claim of right
defense for any difference in price between what the sheet set was worth and the amount
of the slipcover, defense counsel indicated he would be requesting an instruction on
attempted theft "based on the evidence that at some point Mr. Willis may have formed
the intent to do it, but it was after the taking of the slipcover." Counsel argued the jury
should have the opportunity to consider whether the slipcover was always within Wal-
Mart's control and whether Willis might have formed the intent to permanently deprive
Wal-Mart of the money, not the slipcover, only after taking the slipcover to the counter.

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After the court stated it would allow counsel to argue such factual points to the
jury, but would not at that point instruct on attempted theft, the prosecutor commented
that he thought such argument was improper based on Davis, supra, 19 Cal.4th 301, even
if money were the object of the theft because the second element of an attempt, that there
be a direct and ineffectual act, could not be shown in this case. The prosecutor explained
that even "[i]f we just assume for purposes of this that he formed the intent while
standing in line, he did in fact return the item and obtained a refund. So there's no
ineffectual act. There's no attempt. He completed it." The trial judge agreed, stating, "I
think that's well put. So it would defeat the attempt argument no matter which way you
look at it. . . . [¶] I'm going to decline to instruct on the attempt. If we were back to false
pretenses, it's a clear attempt. But I think that is all gone now. That's been eradicated by
the Davis case [and] Shannon. . . ."
At the conclusion of the evidence, after the court further reviewed jury instructions
with counsel before closing arguments, defense counsel again raised the issue of whether
the court would reconsider giving the attempt instruction as it was his "inclination
without mentioning larceny by trick or deceit to argue there's no completed theft here."
The court acknowledged that defense counsel was in a "very odd position in this case,"
but as long as the prosecutor was "not going after what might be considered an attempt
false pretenses at the register," the court would not instruct on attempt. The court
acknowledged, however, that if the prosecutor argued other than there was a "completed
larceny prior to the time [Willis takes the slipcover] to the register," then it would have to
give the instructions that defense counsel requested.

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After closing arguments, the court instructed the jury on theft by larceny as
follows:
"Defendant is accused in Count 1 of having committed petty theft by
larceny in violation of Penal Code Section 484[, subd.] (a), a crime.
Every person who shall feloniously steal, take, carry, lead or drive
away the personal property of another of a value less than $400 is
guilty of petty theft by larceny. [¶] In order to be guilty of theft by
larceny, the following elements must be met: One, a person must
take possession; two, of personal property; three, owned or
possessed by another; four, by means of trespass; five, with the
intent to steal the property; and six, carry the property away. [¶] The
act of taking personal property from the possession of another is a
trespass unless the owner consents to the taking freely and
voluntarily or the taker has a legal right to take the property. [¶] A
retail store impliedly consents to permit customers to take items
from shelves and to carry the items from one area of the store to
another for the purpose of examination and/or purchase. This
consent does not necessarily imply consent to permit customers to
take the merchandise from a shelf to carry the merchandise to
another area of the store for any other purpose. [¶] The specific
intent which is an element of the crime of petty theft is satisfied by
either an intent to deprive an owner permanently of his or her
property, or to deprive an owner temporarily, but for an
unreasonable time, so as to deprive him or her of a major portion of
its value or enjoyment, or to deprive the owner of the property and
then restore the property to the owner only on the condition of the
owner's payment of some reward, refund, or other consideration. [¶]
If the taking has begun with the necessary criminal intent to steal,
the slightest movement of the property thereafter constitutes a
carrying away of the property. To constitute theft of merchandise
from a retail store, it is not necessary that the property taken be
removed from the premises or retained by the perpetrator."
During deliberations, the jury submitted a note to the court simply stating,
"Tempted . . . 'petty theif [sic] law.' " When the court proposed a reply stating, " '[i]f you
are asking for the law on attempted petty theft, the Court cannot give this to you because
this is not before you,' " defense counsel objected that the court should instruct on attempt

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and, that if it was not going to do so, it should stop the response after stating " 'the Court
cannot give this to you,' period." Counsel believed that the court's proposed response that
the issue was not before them was misleading because he had argued that Willis should
be "acquitted because all he did was commit [an attempted] petty theft at best."
In again denying the request to instruct on attempted petty theft, the trial judge
explained that she had reconsidered the matter during counsel's argument and could not
find any way "to attempted petty theft no matter which way I looked at it, no matter
which element I was looking at, because the asportation law is so clear and requires so
little movement to be a carrying of the property--the moment the return sticker was
placed from one item to the other and the property was moved--and then the defendant
confessed to that. [H]e told the officer that's what he did on top of it. . . . [¶] . . . I just
don't think there's any evidence to support an attempt under those circumstances." When
the court offered to rewrite the response to somehow state that the jury must only decide
whether or not the elements of a completed petty theft have been shown because
attempted petty theft is not a crime for the jury to consider, defense counsel stated he
preferred "the present unacceptable response rather than the proposed one." The court
thereafter provided the jury with its originally proposed reply.
On appeal, Willis contends the trial court prejudicially erred in failing to instruct
the jury on attempted theft because he did not intend to permanently deprive Wal-Mart of
the slipcover. He specifically argues the court was required to instruct on attempted theft
because it was a necessarily included lesser offense and the evidence showed he was only

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attempting to trick Wal-Mart into consenting to the taking of the property. Willis asserts
the failure to give such instruction prejudiced him. Willis's arguments are without merit.
The law is well-established that "[i]n criminal cases, even absent a request, the
trial court must instruct on general principles of law relevant to the issues raised by the
evidence. [Citation.] This obligation includes giving instructions on lesser included
offenses when the evidence raises a question whether all the elements of the charged
offense were present, but not when there is no evidence the offense was less than that
charged. [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) In reviewing a
claim that the evidence supports the giving of instructions on such lesser included
offenses, we apply the independent or de novo standard of review. (People v. Cole
(2001) 33 Cal.4th 1158, 1218.) "A trial court must instruct sua sponte on a lesser
included offense only if there is substantial evidence, ' "that is, evidence that a reasonable
jury could find persuasive" ' [citation], which, if accepted, ' "would absolve [the]
defendant from guilt of the greater offense" [citation] but not the lesser' [citations]."
(Ibid.; original italics.)
From our independent review of the record, we conclude there was insufficient
evidence to require the trial court to instruct on the lesser offense of petty theft in light of
the controlling law. As the trial court correctly found, the elements of the petty theft of
retail merchandise with a prior theft-related conviction charged in this case was
controlled in the first instance by the California Supreme Court decision in Davis, supra,
19 Cal.4th 301, which we are required to follow. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450.)

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The Supreme Court in Davis explained that it had "granted review to determine
what crime is committed in the following circumstances: the defendant enters a store and
picks up an item of merchandise displayed for sale, intending to claim that he owns it and
to 'return' it for cash or credit; he carries the item to a sales counter and asks the clerk for
a 'refund'; without the defendant's knowledge his conduct has been observed by a store
security agent, who instructs the clerk to give him credit for the item; the clerk gives the
defendant a credit voucher; and the agent detains him as he leaves the counter with the
voucher; he is charged with theft of the item. In the case at bar the Court of Appeal held
the defendant is guilty of theft by trespassory larceny. We agree." (Davis, supra, 19
Cal.4th at p. 303.)
Our high court in Davis further concluded that:
"[T]he defendant's intent to claim ownership of the shirt and to
return it to [the department store] only on condition that the store
pay him a 'refund' constitutes an intent to permanently deprive [the
store] of the shirt within the meaning of the law of larceny, and
hence an intent to 'feloniously steal' that property within the meaning
of Penal Code section 484, subdivision (a) [citation]. Because [the
store] cannot be deemed to have consented to defendant's taking
possession of the shirt with the intent to steal it, defendant's conduct
also constituted a trespassory taking within the meaning of the law
of larceny." (Davis, supra, 19 Cal.4th at p. 317.)
Because the facts in this case were similar to those in Davis, supra, 19 Cal.4th
301, the trial court instructed the jury in elements fashioned from that opinion for a
trespassory taking within the meaning of the law of larceny. Willis does not contend that
the given instructions were wrong or that there was insufficient evidence to support his
conviction based on those instructions. Nor does he assert the court's response to the jury

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was improper. Willis, rather, tries to distinguish the facts of his case from those in Davis,
by claiming that the removal of the pink return sticker from his sheets and placement on
the more expensive slipcover was actually larceny by trick and device because he
attempted to trick Wal-Mart into allowing him to take the slipcover to the customer
service desk and collect a refund for it instead of the sheet set, or that such conduct was
an attempted theft by false pretenses similar to price tag switching observed by store
security. His arguments fail.
The mere fact that Willis brought a sheet set into Wal-Mart and then transferred
the pink return sticker from that set to the slipcover does not change the pertinent facts
that Willis took possession of the slipcover belonging to Wal-Mart with the admitted
intent to claim ownership of it for a higher refund and carried it away to the customer
service desk where he gave it back to Wal-Mart only on the condition that the store give
him a refund credit for it. Under these facts, the court in Davis has held that the offense
committed is theft by trespassory larceny, not larceny by trick and device, and that the
crime was complete at the time the defendant carried away the merchandise with the
intent to claim it as his own. (Davis, supra, 19 Cal.4th at pp. 303, 305, fn. 3, 317-318.)
Just as the defendant in Davis, Willis here committed the completed offense of theft by
trespassory larceny of merchandise from a retail business.
Moreover, there is no evidence in the record to support Willis's argument that he
used false pretenses to induce Wal-Mart to give him the slipcover, which he alone had
taken off the shelf and put in his bag before carrying it to the customer service counter.
(See Shannon, supra, 66 Cal.App.4th at p. 654.) Nor is there any evidence showing that

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there was a direct but ineffectual act that prevented Willis from taking the slipcover from
the store's shelf and carrying it toward the customer service counter. (See People v.
Carpenter (1997) 15 Cal.4th 312, 387; Shannon, supra, 66 Cal.App.4th at pp. 653-654.)
Further, "even if [Willis] intended to abandon the [slipcover] if his scheme failed, the
theft was complete when he dropped the [slipcover] into his bag intending to defraud the
store of [its] monetary value." (Shannon, supra, 66 Cal.App.4th at pp. 656-657.)
In sum, Willis has not shown that his case falls outside the law set out in Davis,
supra, 19 Cal.4th 301 and Shannon, supra, 66 Cal.App.4th 649, or that the evidence in
the record was substantial enough to merit consideration by the jury of the possibility that
he merely attempted to commit theft rather than complete such crime.5 No instructional
error is shown in the court's refusal to give attempted petty theft instructions.
II
BLAKELY/CUNNINGHAM
At a sentencing hearing on October 21, 2005, after noting it had read the probation
officer's report in this case, the report in an earlier case in which Willis had been
convicted of grand theft, Willis's statement in mitigation and his motion to strike a prior
strike conviction, the court indicated it was inclined to follow the 25-year-to-life three
5 Willis fails to appreciate that it was only his defense counsel's speculative
arguments, which are not evidence, that were offered in support of attempt instructions.
As the trial court recognized after hearing closing arguments, defense counsel was in an
awkward position because he was arguing against the evidence in light of the controlling
law set out in Davis, supra, 19 Cal.4th 301, upon which the prosecution had relied and
had argued, and Willis's post-arrest statements.

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strikes sentence recommended by the probation officer and asked defense counsel for
comments.
Concentrating on the motion to strike a prior strike conviction, Willis's counsel
stressed that "a life sentence for this petty theft when the strikes are as old as they are . . .
is outside of the spirit of the three-strikes law." Counsel opined that such a sentence
would constitute "cruel and unusual punishment for shoplifting." Counsel urged the
court to reconsider its tentative, pointing out the relatively nonviolent prior acts of theft
that constituted Willis's priors and the minimal criminal conduct in the instant case, and
to "fashion something in accordance with the statement in mitigation and the [motion to
strike] that was previously filed."
Expressing its desire to conduct a closer analysis, the court gave Willis's counsel
an opportunity to submit briefing "compar[ing] this case and its factual scenario and the
priors to others that [he said] would be persuasive to the court." The court commented
that although it thought 25-year-to-life was "an extraordinarily harsh sentence," it thought
that a nine-year sentence, if it struck a strike, was not enough. The court asked counsel to
submit further briefing on the matter, asked the probation officer for an updated report,
and scheduled the matter for further hearing.
At the beginning of the continued sentencing hearing, the court advised the parties
that after additional review its tentative was to now strike a strike. Defense counsel
agreed with the court's new tentative and argued that Willis at most should be subject to a
low end term of two years, which doubled would be four years. After considering the
parties' arguments, and noting that this case was "on the edge" and the tenor of recent

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decisions and the public had changed from earlier days regarding the spirit of the three
strikes law, the trial judge explained her decision, stating:
"The factors that have turned me around to say this should be an
upper term plus the three prison priors, rather than a full 25-to-life,
in other words, the factors that have led me to believe it is
appropriate in this case to strike one of the strikes are several: [¶]
Number one, the defendant's age. He's getting to that point in his
life where he's less and less of a risk. [¶] Number two, the age of the
prior strikes. [¶] Number three, the fact that he had a very well-
established pattern of criminality. And that pattern was that he was
doing brazen public . . . necklace chain snatches from women. And
in none of the cases except for one was there a reported injury. One
reported injury was fairly minor. He never used a weapon. [¶] I do
not, in looking at the fullness of his criminal history, believe he
poses a risk of serious bodily injury or death to anyone. And I feel
that his risk, if any, is going to be even more minimal when he gets
out after five years actual time served on a two-strike sentence. [¶]
The current offense, of course, is a misdemeanor but for the prior;
and the prior is considered in aggravating the sentence otherwise."
The judge then explained that she had had to overcome Willis's obnoxiousness and
dirty looks during the court proceedings "in order to look carefully at really what the
actions have been as opposed to the look on the face and the rather mean attitude about
the whole court process," advising Willis not to project himself as being such a mean,
angry "awful guy." That aside, the judge stated, "if I really analyze what the whole
criminal aspect has been, how old the priors are, what the criminal history has been--I
come down on the side that he is not a high risk to society other than to be a pain. And I
think that that is not something that deserves 25-to-life. [¶] And so for those reasons, . . .
I'm not worried the public will be at risk. And I think that nine years suffices overall in
this case. I think [the] upper term is appropriate, taking into account I've stricken a strike.
And so that will be the Court's decision. And I think it's pretty plain what has formed the

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basis of my opinion. [¶] So in this case I'm going to strike the strike. I want to be
specific about the strike. . . . I'm going to strike the 1986 burglary strike, leaving the
[1989] strike. That's the second strike. That doubles the prison term."
The judge then stated that "[o]n the underlying offense of petty theft with a prior,
I'm going to impose the upper term of 3 years doubled because of the one remaining
strike. That's 6 years. Plus three prison priors for a total of 9 years in state prison."
On appeal, Willis contended that the trial court's imposition of an upper term
based on facts not found true by the jury violated his federal constitutional rights to proof
beyond a reasonable doubt, a jury trial, and due process under Blakely, supra, 542 U.S.
296 and Apprendi, supra, 530 U.S. 466, even though he recognized we were bound to
follow our Supreme Court's holding in People v. Black (2005) 35 Cal.4th 1238 (Black)
that Blakely did not invalidate the California DSL sentencing scheme as to the choice of
an upper term. (Black, supra, at p. 1244.) While Willis's appeal was pending, the high
court issued its decision in Cunningham, supra, 127 S.Ct. 856, which overruled Black
and struck down the DSL on precisely the grounds urged by Willis in this appeal. As that
court stated, "Contrary to the Black court's holding, our decisions from Apprendi to
Booker point to the middle term specified in California's statutes, not the upper term, as
the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to
find the facts permitting an upper term sentence, the system cannot withstand
measurement against our Sixth Amendment precedent." (Cunningham, supra, 127 S.Ct.
at p. 871, fn. omitted.) In so holding, the high court again reaffirmed Apprendi's bright-
line rule, that had been reiterated in both Blakely and United States v. Booker (2005) 543

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U.S. 220 (Booker), that "[e]xcept for 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.' [Citation.]" (Cunningham, supra, 127
S.Ct. at p. 868.)
As noted earlier, Willis filed supplemental briefing regarding the effect of
Cunningham, supra, 127 S.Ct. 856, on the upper term imposed in this case and claiming
the issue was not waived even though he had not objected at the time of sentencing under
Blakely, supra, 542 U.S. 296 because to do so would have been futile in light of Black,
supra, 35 Cal.4th 1238 being the binding law in California at that time.
Although the People concede that Cunningham, supra, 127 S.Ct. 856, generally
precludes a trial court from finding facts to impose an upper term sentence and that the
middle term is the statutory maximum for a valid sentence in California in the absence of
jury found aggravating facts, they contend Willis forfeited his Cunningham/Blakely claim
because he failed to object under Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S.
296, or the right to a jury trial at the time he was sentenced on December 1, 2005, long
after Blakely had been decided. The People assert that even if the issue is reached, there
was no Cunningham violation in this case because Willis's nine-year sentence was below
the statutory maximum because he was convicted as a third strike defendant based on his
admissions to two prior strike convictions and because of the recidivism exception under
Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).
Although Willis's counsel failed to object on Blakely grounds below, we do not
consider the Cunningham/Blakely issue forfeited in this case. At the time of Willis's

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sentencing hearings, the court and parties were directed to concentrate on the issue of
whether the court should strike a strike or whether not to do so would constitute cruel and
unusual punishment in light of the minimal retail petty theft involved in the instant case
and Willis's somewhat extensive but basically nonviolent criminal history. Moreover,
even though Blakely had been filed almost a year and a half before Willis's sentencing,
Black was the current law in California and the Ninth Circuit case in Cunningham had
not yet been granted certiorari. (People v. Cunningham (April 18, 2005, No. A103501
[nonpub. opn.]), cert. granted sub nom. Cunningham v. California (Feb. 21, 2006, No.
05-6551) 126 S.Ct. 1329.) Under these circumstances, we decline to find the issue
waived.
Regarding such substantive issue, we shall reverse and remand for resentencing.
As Willis correctly points out, because the trial judge struck one of his strikes for
sentencing purposes, he faced sentencing as a second strike defendant and thus the
"statutory maximum" that he could receive under Cunningham/Blakely was the middle
term for his petty theft, or two years, which would then be doubled under the three strikes
law to four years. Contrary to the People's position that the statutory maximum is based
on Willis being an admitted third striker and that the upper term was within the range of
that 25-year-to-life term, once the court struck one of Willis's strikes, its legal fact was
unconditionally deleted for sentencing purposes in the instant proceeding. (People v.
Garcia (1999) 20 Cal.4th 490, 496, 502-503; People v. Barro (2001) 93 Cal.App.4th 62,
67; People v. Santana (1986) 182 Cal.App.3d 185, 190.)

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Although Willis admitted below that he had served three prior prison terms, had
committed a prior burglary and robbery that were his prior strike convictions and had
committed the priors that elevated his current petty theft to a felony, the court stated it
was imposing the upper term of six years because it had "stricken a strike" and "because
of the one remaining strike." These statements without more specific reasoning,
however, are difficult to assess because, as noted above, the result of the court having
stricken a strike and there being only one remaining strike merely rendered Willis a
second strike defendant for the purposes of sentencing. As such he was facing the
doubling of the term chosen for his petty theft in this case. The People would have this
court glean the trial court's reasoning for choosing and imposing the upper term from its
comments as to why it was striking the strike, arguing such shows the court was relying
upon Willis's criminal history which falls under the "Almendarez-Torres recidivism
exception" to Blakely/Cunningham claims. We decline to do so.
Because we cannot ascertain the court's real reasons for imposing the upper term
sentence in this case, aside from striking a strike, we find it somewhat counterproductive
to speculate as to those reasons. While there are certainly many factors in Willis's
criminal history that may support an upper term, and a single aggravating circumstance is
sufficient to impose such term (People v. Osband (1996) 13 Cal.4th 622, 728-729), the
trial court found many others that balanced out or outweighed them. Thus on this record
it would be fruitless to guess at each one and then engage in a lengthy harmless error
analysis under Chapman v. California (1967) 386 U.S. 18 if that factor arguably should
have been submitted to the jury. (Washington v. Recuenco (2006) ___ U.S. ___, 126

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S.Ct. 2546, 2549.) Accordingly, we reverse Willis's sentence and direct the trial court to
resentence Willis as a second-strike defendant.
DISPOSITION
The sentence is reversed and the case remanded to the superior court to conduct a
new sentencing hearing consistent with the views expressed in Cunningham, supra, 127
S.Ct. 856. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.

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