P. v. Amaya

Filed 4/2/07 P. v. Amaya CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MARVIN EVENORLAZO AMAYA,
Defendant and Appellant.
H029396
(Santa Clara County
Super. Ct. No. CC476481)
On January 27, 2005, the Santa Clara County District Attorney filed an
information charging appellant with assault with a deadly weapon on a peace officer
(Pen. Code, § 245, subd. (c), count one), 1 battery on a peace officer (§§ 242-243, subd.
(c)(2), count two), resisting or deterring an officer (§ 69, counts three, four), resisting,
delaying, or obstructing an officer, a misdemeanor (§ 148, subd. (a)(l), count five),
possession of burglar tools, a misdemeanor (§ 466, count six), being under the influence
of a controlled substance, a misdemeanor (Health & Saf. Code, § 11550, subd. (a), count
seven), and possession of a controlled substance, a misdemeanor (Health & Saf. Code, §
11377, subd. (a), count eight). The information alleged that appellant personally used a
dangerous and deadly weapon, a flashlight, in counts one and two.
1 Unless noted, all unspecified statutory references are to the Penal Code.

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On June 9, 2005, a jury found appellant guilty of the lesser offense of
misdemeanor assault on a peace officer on count one, guilty as charged on counts two,
four, five, seven, and eight. However, the jury found the personal weapon use allegation
in count two not true. Further, the jury found appellant not guilty on counts three and
six. On September 23, 2005, the trial court sentenced appellant to a total prison term of
three years eight months.
On September 26, 2005, appellant filed a notice of appeal.
On appeal, appellant raises two issues. First, with respect to counts two and five
he contends the record is devoid of substantial evidence that the officer was lawfully
engaged in the performance of his duties at the time he detained him. Second, appellant
challenges the imposition of an aggravated term relying on Blakely v. Washington (2004)
542 U.S. 296 [124 S.Ct. 2531]. We will affirm the judgment, but remand to the trial
court for resentencing.
Facts
The February 5, 2004 Incident2
About 1:00 a.m. on February 5, 2004, San Jose Police Officer Miri saw appellant
walking down the street with a backpack. After seeing Officer Miri's patrol car, appellant
made a tossing motion with his right arm. Officer Mattocks, Officer Miri's partner,
pulled the patrol car over, and Officer Miri got out and made contact with appellant.
Appellant agreed to talk with the officers and walked toward them. While Officer
Mattocks talked to appellant, Officer Miri walked over to the area where he had seen
appellant make the tossing motion. He found a bag containing a green leafy substance.
Inside of this bag was a smaller bag containing a white powdery substance. Officer Miri
2 Counts three, four, seven and eight related to the events of February 5, 2004.
Since this appeal does not present any issues relating to this incident, we summarize the
facts very briefly.

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thought the substances were marijuana and methamphetamine. When Officer Miri asked
appellant why he threw the items away, appellant told them "he was scared." He told the
officers the white powder was cocaine.
Since appellant showed symptoms of being under the influence of a controlled
substance, Officer Miri arrested him. As Officer Miri was handcuffing appellant,
appellant kept moving around and tried to walk away. Officer Miri grabbed the chain on
the handcuffs and appellant twisted the cuffs on Officer Miri's hands so that the officer
had to let go. Officer Mattocks grabbed appellant by his shoulder and upper body and
took him to the ground. During the ensuing struggle, appellant kicked Officer Miri.
The June 7, 2004 Incident3
About 12:40 a.m. on June 7, 2004, San Jose Police Officer Diep saw a 1999
Honda Civic traveling at "a high rate of speed." The car, which did not have a license
plate, did not stop at a stop sign. Officer Diep began to pursue the car with his lights and
siren activated. After a short pursuit, the car stopped. After Officer Diep stopped behind
the Honda, the driver got out, looked at Officer Diep, and then ran off. Officer Diep
chased the suspect on foot. After a short pursuit, Officer Diep realized there was a
passenger in the Honda. He returned to the car and took the passenger into custody
because he suspected the car was stolen. As he did so, he noticed what appeared to be
some tampering with the Honda's steering column. Dispatch confirmed that the car had
been reported stolen.
Officer Diep broadcast over the radio that the driver was a Hispanic male,
approximately five feet eight inches and 180 pounds, wearing a gray jacket, black jeans,
and a hat. Officer Diep last saw the driver running into a school. The passenger in the
Honda said the driver, Eddie Cardenas, was 22 years old and lived on Lanai. A few
minutes after the initial call, another broadcast said the suspect's jacket had been found at
3 The June 7, 2004 incident relates to counts one, two, five and six.

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the school. Officer Diep confirmed that appellant was not the person who ran from him
that night.
Officer Heinrich was helping in the search for the suspect from this incident. He
went to the address given for Cardenas and waited nearby, hoping he would return home.
The school where the suspect was last seen was a few blocks away. Officer Heinrich
waited nearly an hour while other officers continued to search the area. When he heard
that his sergeant had stopped someone nearby, he went to assist him.
At 1:38 a.m., on his way to assist his sergeant, Officer Heinrich saw appellant
walking down the street. Officer Heinrich thought appellant "matched the general
description, that he was a male, Hispanic, 5,7, 5,8, around 170," that had been broadcast
over the radio, and he was wearing dark pants. As soon as appellant saw the officer
looking at him, "he basically stopped in his tracks." Appellant was about 20 feet from the
edge of the pavement. Officer Heinrich could not tell how old appellant was because it
was dark. Appellant had something clenched in his hands. However, Officer Heinrich
could not see what it was. Officer Heinrich explained to the jury that he thought
appellant might be the suspect from the stolen car incident. Appellant was walking in the
"same area" that the suspect's house was located; time had passed since the incident so
that there were less patrol units in the area giving the suspect an opportunity to "get off if
he hunkered down."
Officer Heinrich got out of his car and stayed on the driver's side while appellant
was "on the right rear passenger side" from him. He called for appellant to come over to
his patrol car. Then, he directed him to put the items he had in his hands on the trunk. 4
Officer Heinrich thought appellant might have been the driver of the stolen vehicle and
4 Officer Heinrich testified that he called appellant over to him using the word
"venga" although he said he thought the word began with a "b" not a "v." Appellant
testified that Officer Heinrich told him " '[c]ome here,' "although he could not remember
whether the he spoke to him in English or Spanish.

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that he was possibly carrying a weapon. Appellant put a screwdriver, a pair of pliers, a
stereo faceplate, a Game Boy, and a flashlight on the patrol car.
Thereafter, appellant put out his hands to show they were empty, then slapped
them down on the trunk of Officer Heinrich's car. As he did so, he picked something up
from the car and put his hands in his pockets. Officer Heinrich walked toward appellant
and told him to take his hands out of his pockets. Officer Heinrich testified that he was
concerned that appellant might have picked up the screwdriver, which he thought
appellant could use as a weapon. In addition, he was concerned that the items on the
trunk, the time of night, and the location, suggested that appellant might be engaged in
burglary.
As Officer Heinrich approached, appellant ran off. Officer Heinrich radioed that
he was in a foot pursuit and chased after appellant. He pursued appellant down the street
while yelling at him to stop. Appellant ran into a very dark corner of a house where there
was a fence attached to the garage. Officer Heinrich thought appellant was going to jump
over the fence as he came up behind him. At the fence, appellant turned around in a
fighting stance and moved back and forth. Officer Heinrich ran at him and tackled him,
forcing him to the ground. As he did so, appellant hit him in the right side. Officer
Heinrich continued to struggle with him as he tried to get appellant onto his stomach so
he could handcuff him.
While Officer Heinrich held on to appellant's back, appellant rocked forward,
causing Officer Heinrich to lose his balance. At the same time, Officer Heinrich saw the
screwdriver appellant had earlier, and his own flashlight, on the ground next to appellant.
Fearing that appellant would grab the items and use them as weapons against him,
Officer Heinrich tried to drag appellant away from them. Officer Heinrich testified that
at the same time, appellant reached up and scratched him. In addition, appellant grabbed
his flashlight and hit him in the head, causing a two-inch laceration.

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During the struggle, appellant had been pulling at Heinrich's gun belt, which held
other items that Officer Heinrich thought appellant could use as weapons against him,
including his taser and extendable baton. At one point, appellant pulled Officer
Heinrich's handcuffs out of their case. In addition, appellant tried to pull Officer
Heinrich's gun from the belt. Officer Heinrich punched appellant in the face to overcome
his resistance, but appellant continued to struggle.
Officer Heinrich said that after appellant hit him in the head, he continued to try to
gain control of appellant so he could handcuff him. He punched appellant and pushed
him up against the wall of the house. He got out his taser, but appellant tried to grab it
from him. Officer Heinrich was able to retain control of the taser and use it on appellant.
Appellant dropped down to a squatting position and started screaming at Officer
Heinrich. Appellant looked like he was trying to get up. Officer Heinrich started hitting
appellant in the legs with his baton in an effort to get him to the ground. He told
appellant to get on the ground. Appellant went down on his hands and knees, but he
refused Officer Heinrich's order to get down on his stomach with his hands to his sides.
Officer Heinrich used his taser on appellant a second time, but appellant remained on his
hands and knees. After Officer Heinrich hit him in the back of the legs with his baton,
appellant went down on his stomach. Appellant had his hands clenched under his chest
and refused to put them down to his sides. Officer Heinrich used his taser on appellant a
third time. Then, appellant finally cooperated. At that point, Officer Ferguson arrived
and was able to handcuff appellant.
In addition to a cut on his head, which required staples, Officer Heinrich had cuts
to his knees, and scrapes and abrasions on his hands, elbows, chin, and neck. During the
struggle with appellant, Heinrich's watch and flashlight were broken, his radio earpiece
and microphone were ripped from his shirt, and his uniform was damaged.
Sergeant Martin testified as an expert regarding the San Jose Police Department's
policies on the use of force for detention and arrest. In addition, he testified regarding

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when an officer has reasonable suspicion to detain an individual. Responding to a
hypothetical question reflecting Officer Heinrich's actions, Sergeant Martin opined that
he was acting consistently with departmental procedures when he attempted to contact a
potential suspect regarding a stolen vehicle. Further, Sergeant Martin opined that an
officer could reasonably ask the suspect to place items he was carrying on the trunk of the
patrol car to ensure officer safety. Since some of the items in the hypothetical appeared
to be common burglary tools, the officer could reasonably inquire further regarding the
tools, and secure items, such as a screwdriver, from being used as a weapon.
Sergeant Martin told the jury that it would be reasonable for an officer to pursue
an individual who grabbed an item from the patrol car, put his hands in his pockets and
refused to remove them, and then fled from the officer, thereby obstructing and resisting
the officer's performance of his duties. Furthermore, if the individual continued to resist
the officer when cornered and turned to fight the officer, it would be reasonable for the
officer to attempt to subdue him and gain control. Moreover, it would be reasonable for
an officer to punch an individual if he was grabbing for the officer's gun. Likewise, it
also would be reasonable for the officer to use force, including using a taser and baton, if
the suspect had struck him in the head with a flashlight, causing a laceration, and
continued to resist the officer's efforts to gain control. Sergeant Martin explained to the
jury that the instances in which a suspect used force against an officer or attempted to use
the officer's weapons against him were rare.
Defense Case
Miguel Lozano lived in the house where Officer Heinrich apprehended appellant.
He looked outside on June 7, 2004, around 1:30 a.m. when he heard some noise. He saw
two people wrestling on the ground a few feet from his window. He could not see what
they were wearing and did not know that one of the men was a police officer. It looked
as if the person on top was trying to subdue the other person, who was on his back. The
man on the bottom was trying to push off the man on top. Lozano did not see any injury

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to the man on top, nor did he see a flashlight or screwdriver in the area. As Lozano
moved into his living room to get a better look, he saw his front door pushed in from the
force of the struggle outside. He was yelling at the men to leave when he heard both the
sound of his lawn chair moving, and the scuffling move away from the front door. When
it became quiet, Lozano opened his door. He saw a police officer holding a taser in his
hand and standing near the other man, who appeared to be trying to stand up. The officer
told the man to stay down, and asked Lozano for his address. Lozano saw the man on the
ground keep trying to get up. Then, the officer hit him with his baton three or four times.
At that point, other officers arrived and handcuffed the man on the ground. The man did
not stop resisting the officer until the officer handcuffed him. Afterward, Lozano saw a
screwdriver, and what he thought was a cell phone on the ground.
Appellant testified regarding the February 5, 2004 incident that he was walking
home from a friend's house where he had been smoking marijuana and using cocaine or
methamphetamine. He was carrying a bag of drugs with him. However, he tossed the
bag away when he saw the police officers. He explained this was because he was afraid
that the officers would arrest him. Officer Miri asked appellant to stand by the patrol car
while he retrieved the bag of drugs. Appellant admitted the drugs were his.
Appellant explained that when Officer Miri put handcuffs on him, they were very
tight and caused him intense pain. He told the officer they were tight, but the officer just
threw him onto the patrol car, picked him up by the handcuffs, and then threw him on the
ground. Appellant experienced a "lot of pain" after the officer threw him to the ground.
He denied that he kicked the officers. As he lay on the ground, he told the officers that
he had not done anything wrong. Then, one of the officers sprayed his face. Eventually,
they picked him up and put him in the patrol car. Appellant testified that he had red
marks and cuts on his wrists from the handcuffs. In addition, he had bruises and pain in
his jaw after his arrest.

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With regard to the June 7, 2004 incident, appellant testified that at the time he was
38 years old. He went to a friend's house to work on a truck. He took a flashlight and
screwdriver with him. His friend gave him the stereo faceplate, and he found the Game
Boy on the street on his way there. Appellant admitted that he drank a few beers. He
may have used marijuana and methamphetamine.
Appellant left his friend's house about midnight to walk home. On the way, he
encountered Officer Heinrich. When Officer Heinrich asked him to come over, appellant
complied. At Heinrich's request, he put the items he had in his hands on the officer's car.
He denied that he picked anything up or that he put his hands in his pockets. Heinrich
was standing on the driver's side of the car, and he was standing on the passenger side.
Although nothing had happened, appellant turned and ran from Officer Heinrich.
He said he was afraid of San Jose police officers because they hurt him and "assaulted"
him in the earlier incident. Officer Heinrich chased after him, but appellant could not
recall what he was saying. Appellant said he ran into the front yard of a house and
stopped by the front door, where he put his hands up to surrender. He denied that he tried
to run away or turned toward the officer. Officer Heinrich came up from behind and put
one arm around appellant's throat and the other arm across his neck, so that appellant
could not breathe. The officer moved him back and forth while still holding onto his
neck, and then threw him to the ground. When appellant fell, the officer fell down on top
of him. Appellant yelled that he had done nothing wrong. Officer Heinrich stood up,
then punched appellant in the face three times while he was on the ground. Officer
Heinrich did not attempt to put handcuffs on appellant, but hit him in the legs even
though he did not try to get up. Appellant denied that he tried to pull anything out of the
officer's belt. Appellant said that while he was still on the ground, Officer Heinrich used
the taser on him, which caused intense pain. According to appellant, although he had not
done anything, Officer Heinrich used his taser on him two more times.

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Appellant could not move and did not recall what happened after that, although he
did recall being handcuffed and put in a patrol car. Appellant never saw Officer
Heinrich's flashlight that night. He denied that he struck Officer Heinrich in the head
with any object. On cross-examination, appellant said he had no explanation for how the
screwdriver he placed on Officer Heinrich's car ended up at the house where officers
arrested him. He denied that he tried to jump over a fence at the house. He may have run
initially because he did not want to have any further problems after his previous arrest. 5
Discussion
Sufficiency of the Evidence
Appellant contends that the record is devoid of substantial evidence that Officer
Heinrich was lawfully engaged in the performance of his duties at the time he detained
him. Accordingly, he urges this court to reverse his conviction on counts two and five.
Appellant explains that count two, battery on a peace officer engaged in the
performance of his duties, and count five, resisting arrest, contain as a necessary element
of the offense a requirement that the officer be discharging or performing his duty.
Appellant argues that since the record in this case does not contain sufficient
evidence that Officer Heinrich lawfully detained him, Officer Heinrich was not engaged
in the performance of his duties at the time he stopped him on June 7, 2004.
In a challenge to the sufficiency of the evidence on appeal, "we review the whole
record in the light most favorable to the judgment below to determine whether it discloses
substantial evidence-that is, evidence that is reasonable, credible and of solid value-from
which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.) We must " ' "presume in
5 Appellant called Jacob Carrasco to testify about an incident in October 2003, in
which Officer Heinrich stopped him. The prosecutor called Officer Diep to rebut
Carrasco's testimony. Neither appellant nor respondent summarize this testimony, as it is
not relevant to the issues before this court.

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support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence." ' [Citation.]" (People v. Rayford (1994) 9 Cal.4th 1, 23.)
Furthermore, "it is not within our province to reweigh the evidence or redetermine
issues of credibility. [Citation.]" (People v. Martinez (2003) 113 Cal.App.4th 400, 412.)
Moreover, "all conflicts in the evidence . . . must be resolved in favor of the judgment.
[Citations.]" (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) "Reversal . . . is
unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18
Cal.4th 297, 331.) Even if we believe the evidence might also reasonably be reconciled
with the innocence of the defendant, this view "does not warrant interference with the
determination of the trier of fact." (People v. Towler (1982) 31 Cal.3d. 105, 118.)
At the outset we agree with appellant that before a person can be convicted of a
violation of section 148, subdivision (a) or section 243, subdivision (b), the prosecution
must prove that the officer was acting lawfully at the time these offenses were
committed. (In re Manuel G. (1997) 16 Cal.4th 805, 815.) " 'The rule flows from the
premise that because an officer has no duty to take illegal action, he or she is not engaged
in "duties" for purposes of an offense defined in such terms, if the officer's conduct is
unlawful . . . .' [Citation.]" (Ibid.)
Accordingly, we must determine whether the prosecution presented sufficient
evidence from which the jury could have concluded that Officer Heinrich's conduct in
contacting appellant was lawful.
"Police contacts with individuals may be placed into three broad categories
ranging from the least intrusive to the most intrusive: consensual encounters that result in
no restraint of liberty whatsoever; detentions, which are seizures of an individual that are
strictly limited in duration, scope, and purpose; and formal arrests or comparable
restraints on an individual's liberty. [Citations.] . . . Consensual encounters do not trigger
Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable

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suspicion that the person has committed or is about to commit a crime. [Citation.] [¶]
The United States Supreme Court has made it clear that a detention does not occur when
a police officer merely approaches an individual on the street and asks a few questions.
[Citation.] As long as a reasonable person would feel free to disregard the police and go
about his or her business, the encounter is consensual and no reasonable suspicion is
required on the part of the officer. Only when the officer, by means of physical force or
show of authority, in some manner restrains the individual's liberty, does a seizure occur.
[Citations.]" (In re Manuel G., supra, 16 Cal.4th at p. 821; see also Wilson v. Superior
Court (1983) 34 Cal.3d 777; Florida v. Bostick (1991) 501 U.S. 429 [111 S.Ct. 2382]
(Bostick).)
A detention is initially justified "when the detaining officer can point to specific
articulable facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in criminal
activity." (People v. Souza (1994) 9 Cal.4th 224, 231; In re Tony C. (1978) 21 Cal.3d
888, 893.)
"[A]n investigative detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop. Similarly, the investigative methods
employed should be the least intrusive means reasonably available to verify or dispel the
officer's suspicion in a short period of time." (Florida v. Royer (1983) 460 U.S. 491, 500
[103 S.Ct. 1319].)
In accordance with the foregoing, the court instructed the jury that "[a] peace
officer is engaged in the performance of his duties if he is making or attempting to make
a lawful arrest or lawfully detaining or attempting to detain a person for questioning or
investigation and using reasonable force to effect a lawful arrest or detention."
Furthermore, the court defined lawful detention as follows: "A peace officer may
lawfully detain and question a person when the circumstances are such as would indicate
to a reasonable peace officer in a like position that such a course of conduct is necessary

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to the proper discharge of his duties. Temporary detention for questioning permits
reasonable investigation without the necessity of making an arrest. Although peace
officers have the power to detain and question, there must be probable or reasonable
cause to detain. Probable or reasonable cause to detain requires that there be some
unusual or suspicious circumstance or other demonstrable reason warranting the
investigation. Time, location, number of people, demeanor and conduct of a suspect, a
recently reported crime and the gravity of the crime are among the factors that you may
consider. [¶] The general grounds for a reasonable detention are: 1, there must be a
rational suspicion by the police officer that some activity out of the ordinary is taking
place, is occurring or is about to occur; 2, some indication must exist to connect the
person under suspicion with the unusual activity; and, 3, there must be some suggestion
that the activity is related to a crime."
Appellant's attack on the sufficiency of the evidence is his claim that his detention
was not reasonable. In this case, we start from a different perspective than we would if
this case came to us on appeal from the trial court's denial of a motion to suppress
evidence.6 Rather, in this case we need determine only if there is sufficient evidence in
the record such that a reasonable trier of fact could have concluded that Officer Heinrich's
detention of appellant was reasonable.
Officer Heinrich testified that he encountered appellant at approximately
1:38 a.m., less than one hour after the initial stop of the stolen car. Further, it was in an
area close to where the initial car stop had taken place.7 Officer Heinrich explained, the
6 The standard of review of a trial court's ruling on a motion to suppress is well
established. We defer to the trial court's factual findings, express or implied, where
supported by substantial evidence. In determining whether, on the facts so found, the
search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
7 Officer Diep pulled the Honda over at the intersection of Orlando and Everglade.
Appellant was detained by Officer Heinrich at the corner of Florida Avenue and Miami

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car stop suspect may have "hunkered down," waiting for an opportune moment to escape
detection. Officer Heinrich thought that appellant's physical appearance and clothing
matched the general description of the driver of the stolen car. As soon as appellant saw
Officer Heinrich, he "stopped in his tracks." Officer Heinrich was unable to tell
appellant's age because it was dark.
The description of the suspect in the stolen vehicle incident was a generalized
description—Hispanic male, approximately five feet eight inches and 180 pounds,
wearing a gray jacket, black jeans, and a hat. However, Officer Heinrich knew that the
suspect had discarded the jacket and it would have been reasonable for him to assume the
suspect did the same to the hat. Accordingly, when Officer Heinrich saw appellant, he
saw a Hispanic male with the same general physical characteristics as the individual
involved in the car theft. Further, appellant was wearing dark pants. Appellant's
behavior in stopping "in his tracks" 20 feet from the edge of the pavement as soon as he
saw Officer Heinrich could have reinforced the officer's conclusion that appellant might
be the suspect from the stolen car incident.
In addition to the testimony of Officer Heinrich, Sergeant Martin testified in
response to a hypothetical question. He explained that it would be reasonable for an
officer, within an hour of the report of a suspect fleeing from a stolen car and in the same
general neighborhood, to get out of his car to contact a person who met the general
description of a suspect. He told the jury, "In this case the officer would obviously be
trying to determine if this was the person that fled from the stolen car about an hour
earlier . . . it's only about an hour, and the same neighborhood in proximity to where the
stop took place, and then also based on the description is similar enough that I would
want to inquire further."
Drive, the distance between the two places, as appellant concedes, is between .4 and .5 of
a mile.

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In short, there is ample evidence to support the jury's implied finding that Officer
Heinrich properly detained appellant. (People v. Marquez (1992) 1 Cal.4th 553, 578
[police may lawfully detain for questioning person who resembles suspect]; In re Carlos
M. (1990) 220 Cal.App.3d 372, 381-382 [vague description, coupled with presence
within one-half mile of the crime site, within one hour of the crime report, supports
reasonable suspicion]; People v. Souza, supra, 9 Cal.4th at pp. 235, 240-242 [factors such
as the time of night and evasive activity may reasonably justify an officer's suspicion of
criminal activity].) 8 Taking into account "the totality of the circumstances-the whole
picture" (United States v. Cortez (1981) 449 U.S. 411, 417 [101 S.Ct. 690]) in assessing
whether the particularized and objective facts known to Officer Heinrich provided him
cause to detain appellant, we conclude that appellant's resemblance to the generalized
description of the stolen car suspect, the location within half a mile of that incident,
within one hour of the crime report and appellant's strange behavior on seeing Officer
Heinrich, support the jury's implied finding that Officer Heinrich properly detained
appellant.
Accordingly, we reject appellant's challenge to the sufficiency of the evidence that
Officer Heinrich was lawfully engaged in the performance of his duty at the time he
detained or attempted to detain appellant.
Imposition of the Upper Term
At sentencing, the trial court imposed the upper term of three years on count two,
battery on a peace officer, and a consecutive eight-month term on count four, resisting a
peace officer. Appellant objected to the upper term on the ground that the jury made no
findings with respect to the sentence. Citing People v. Black (2005) 35 Cal.4th 1238, the
court overruled appellant's objection.
8 Thereafter, Officer Heinrich was entitled to take reasonable precautions for his
own safety by asking appellant to put down the things he was carrying. (See People v.
Mickelson (1963) 59 Cal.2d 448, 454.)

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In imposing the upper term, the court stated that it was imposing the upper term
"because it has determined that the circumstances in aggravation outweigh the
circumstances in mitigation and further because the defendant engaged in violent conduct
which indicated serious danger to society and also because of the defendant's prior
convictions and the fact that they are increasing in seriousness." Both the violent conduct
aggravator and the prior conviction aggravator were listed in the probation report as
being aggravating factors.
Appellant contends that he was "deprived of his Fifth and Fourteenth Amendment
right to notice of the sentencing factors to be used against him, and was deprived of his
Sixth and Fourteenth Amendment right to a jury trial and to due process and his Fifth and
Fourteenth Amendment right to application of the proof beyond a reasonable doubt
standard when the trial court imposed an aggravated sentence pursuant to a
preponderance of the evidence standard."
Appellant argues that the trial court's imposition of the upper term was "plain
error" under Blakely v. Washington, supra, 542 U.S. 296. Further, pursuant to Blakely,
he was entitled to a jury trial and application of the proof beyond a reasonable doubt
standard regarding the trial court's decision to impose the upper term.
Recently, the United States Supreme Court decided Cunningham v. California
(2007) 549 U.S. —, [127 S.Ct. 856] (Cunningham ). In Cunningham, the Supreme Court
held that because California's Determinate Sentencing Law permits a trial court to impose
an upper term based on facts found by the court, rather than by a jury beyond a
reasonable doubt, it violates a defendant's Sixth and Fourteenth Amendment right to a
jury trial. (Id. at p. ___ [127 S.Ct. at p. 871].)
In a letter brief submitted to this court shortly before oral argument, respondent
argues that because the trial court relied in part on appellant's prior convictions to impose
the upper term, and since only one factor is required to make a defendant eligible for the
upper term, a remand for resentencing is unnecessary.

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Essentially, respondent relies on three cases for the proposition that a remand for
resentencing is unnecessary —Almendarez-Torres v. United States (1998) 523 U.S. 224
[118 S.Ct. 1219], People v. Osband (1996) 13 Cal.4th 622, 728-729, and People v. Earley
(2004) 122 Cal.App.4th 542, 550.
The "fact of a prior conviction" exception derives from Almendarez-Torres v.
United States, supra, 523 U.S. 224 (Almendarez-Torres). Almendarez-Torres confronted
the issue whether a provision in a federal statute prohibiting the return of a deporting
alien "defines a separate crime or simply authorizes an enhanced penalty." (Id. at p. 226.)
The maximum prison term for returning was two years, unless the deportation followed a
conviction of an aggravated felony, in which case the maximum prison term was 20
years. (Ibid.) The court realized that the provision, unlike the minimum sentence
requirement in McMillan v. Pennsylvania (1986) 477 U.S. 79 [106 S.Ct. 2411],9 altered
the maximum penalty for the crime. (Almendarez-Torres, supra, 523 U.S. at p. 243.)
However, the court found no constitutional significance in this difference. The court
explained "the sentencing factor at issue here—recidivism—is a traditional, if not the
most traditional, basis for a sentencing court's increasing an offender's sentence." (Ibid.)
There is a longstanding tradition that recidivism is not an element, but goes only to the
9 In McMillan, the statute at issue required a mandatory minimum sentence of five
years if a person " 'visibly possessed a firearm' " during the commission of certain
offenses. (McMillan, supra, 477 U.S. at p. 81.) The United States Supreme Court briefly
dispatched an argument "that the jury must determine all ultimate facts concerning the
offense committed. Having concluded that Pennsylvania may properly treat visible
possession as a sentencing consideration and not an element of any offense, we need only
note that there is no Sixth Amendment right to jury sentencing, even where the sentence
turns on specific findings of fact." (Id. at p. 93.) Among the indicators that firearm
possession was a sentencing factor, and not an element of the underlying offenses of
robbery, rape, murder, and assault was the fact that the mandatory minimum was well
below the maximum sentence provided by statute for each crime. "The statute gives no
impression of having been tailored to permit the visible possession finding to be a tail
which wags the dog of the substantive offense." (Id. at p. 88.)

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punishment. (Id. at p. 244.) The court concluded that recidivism was not an element of
the offense. (Id. at p. 247.) The court noted that there was no standard of proof claim
"because he admitted his recidivism at the time he pleaded guilty." (Id. at p. 248.)
In Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348] (Apprendi), the
United States Supreme Court described Almendarez-Torres as "at best an exceptional
departure from the historic practice" of having a jury determine the facts necessary for
sentencing. (Apprendi, supra, 530 U.S. at p. 487.) Apprendi characterized Almendarez-
Torres as based partly on the defendant having "admitted the three earlier convictions for
aggravated felonies—all of which had been entered pursuant to proceedings with
substantial procedural safeguards of their own." (Id. at p. 488.) Thus, the Apprendi court
stated, "[e]ven though it is arguable that Almendarez-Torres was incorrectly decided, and
that a logical application of our reasoning today should apply if the recidivist issue were
contested, Apprendi does not contest the decision's validity and we need not revisit it for
purposes of our decision today to treat the case as a narrow exception to the general rule"
that the court applied. (Id. at pp. 489-490, fn. omitted.)
Nevertheless, Cunningham reiterated that "[o]ther than a prior conviction, . . . 'any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to the jury, and proved beyond a reasonable doubt.' " (Cunningham, supra,
549 U.S. at p. — [127 S.Ct. at p. 864].)
In People v. Osband, supra, 13 Cal.4th 622 (Osband), the trial court imposed a
full consecutive sentence under Penal Code section 667.6, subdivision (c), for the rape of
one of the victims "because it 'was such a vicious crime and the victim was beaten and
murdered . . . .' " (Id. at p. 728.) In addition the court imposed the upper term for the
offense "because '[t]he factors in aggravation heretofore stated are found to preponderate
. . . .' " (Ibid.) The factors enumerated by the lower court "were the crime's violence and
cruelty (Cal. Rules of Court, former rule 421(a)(1)), the victim's vulnerability (id., former

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rule 421(a)(3)), and defendant's dangerousness, criminal record and probationary status
(id., former rule 421(b)(1), (2), & (4))." (Ibid.)
On appeal the defendant contended that the court violated former rule 441(c) of
the California Rules of Court, which provided that " '[a] fact used to enhance the
defendant's prison sentence may not be used to impose the upper term,' " by relying on
the same fact to impose the full consecutive sentence under Penal Code section 667.6 and
to impose the upper term under the Rules of Court. (Osband, supra, 13 Cal.4th at p.
728.) The California Supreme Court agreed with defendant's assessment and noted that
the trial court relied on the violent nature of the rape to impose a consecutive sentence
and the upper term. The Osband court found this to be error. (Ibid.)
Nevertheless, the Osband court went on to say that "no prejudice appears.
'Improper dual use of the same fact for imposition of both an upper term and a
consecutive term or other enhancement does not necessitate resentencing if "[i]t is not
reasonably probable that a more favorable sentence would have been imposed in the
absence of the error." ' [Citation.] Only a single aggravating factor is required to impose
the upper term (People v. Castellano (1983) 140 Cal.App.3d 608, 614-615 . . .) and the
same is true of the choice to impose a consecutive sentence (People v. Coulter (1989)
209 Cal.App.3d 506, 516 . . . . )" (Osband, supra, 13 Cal.4th at pp. 728-729.) The
Osband court went on to say, "the court could have selected disparate facts from among
those it recited to justify the imposition of both a consecutive sentence and the upper
term." (Ibid.) Thus, on the record before it the Osband court could discern no reasonable
probability that the trial court would not have done so. Accordingly, resentencing was
not required. (Ibid.)
In People v. Earley, supra, 122 Cal.App.4th 542 (Earley), the Fourth District
Court Appeal relied on Osband, supra, 13 Cal.4th 622, to conclude that the defendant's
one prior prison term was a sufficient aggravating circumstance to allow the court to
impose the upper term of three years. (Earley, supra, 122 Cal.App.4th at p. 550.)

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However, in Earley, unlike this case, the defendant acknowledged that he waived his
right to a jury trial on the prior prison term allegations and submitted to a court trial in
which the aggravating factor was proved beyond a reasonable doubt. (Id. at p. 550.)
Neither Osband nor Earley addressed the issue that this case presents, which is
when the trial judge relies on several factors to impose the upper term, only one of which
is a valid factor—appellant's prior convictions—and there was at least one mitigating
factor, is it reasonably probable that a more favorable sentence would have been
imposed. For the following reason, we believe that it is.
Pursuant to California Rules of Court, rule 4.420 (b), "[s]election of the upper
term is justified only if, after a consideration of all the relevant facts, the circumstances in
aggravation outweigh the circumstances in mitigation." Since the one remaining
circumstance in aggravation and the one circumstance in mitigation are balanced, we
believe that it is reasonably probable they cancel out each other.10 Thus, we must decide
the appropriate remedy in this case.
At oral argument, appellant's counsel conceded that appellant was released from
prison and is on parole. Accordingly, it would seem an exercise in futility to remand this
case to the trial court to resentence appellant. Nevertheless, we perceive of a collateral
consequence if the trial court determines that the upper term is no longer appropriate. "A
prisoner on parole is not free from legal restraint by the penal authorities [citation], but 'is
constructively a prisoner of the state in the legal custody and under the control of the
[Board of Parole Hearings].' 11 [Citations.]" (People v. Denne (1956) 141 Cal.App.2d
499, 507.) If the trial court imposes the midterm, appellant's extra time spent in prison
should be credited against his parole period, which would considerably shorten the period
10 We have no way of knowing the weight the trial court attached to appellant's prior
convictions for drug possession.
11 The Board of Prison Terms was abolished in 2005 and replaced by the Board of
Parole Hearings. (Gov. Code, § 12838.4.)

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in which he would be subjected to the conditions of parole. Accordingly, we remand this
case to the trial court for further proceedings. 12
Disposition
The matter is remanded to the trial court for resentencing. In all other respects, the
judgment is affirmed.
_____________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
12 Currently, there are no procedures in place allowing juries to be convened for
deciding aggravating factors either after conviction or on remand after an appeal. Nor
can we accept respondent's position based on Washington v. Recuenco (2006) ___ U.S.
___ [126 S.Ct. 2546], that we apply harmless error analysis "because had the jury been
asked to make [the] finding" that the appellant engaged in violent conduct in the
commission of the offense there is "no reasonable doubt that the jury would have done
so."
In Washington v. Recuenco, supra, —U.S. at p. —, [126 S.Ct. at p. 2553], the
United States Supreme Court held only that Blakely error is not " 'structural error' " that
would always invalidate a conviction. (Ibid.)

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