P. v. Barrow

Filed 3/29/07 P. v. Barrow 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
WAYMAN ZACHARIAH BARROW,
Defendant and Appellant.
H030041
(Santa Clara County
Super. Ct. No. CC584419)
Defendant Wayman Zachariah Barrow was charged with eight counts arising from
pimping and other misconduct involving two minor girls. During trial he entered guilty
pleas to all charges. The trial court sentenced him to a total of 18 years in prison,
consisting of a base term of 6 years, numerous concurrent terms, and two consecutive
terms of 6 years each.
On appeal defendant’s sole contention is that the imposition of consecutive terms
rested on facts not found by a jury nor admitted by defendant, and thus violated his right
to trial by jury as articulated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). He
concedes that the California Supreme Court rejected a similar contention in People v.
Black (2005) 35 Cal.4th 1238, **** (Black), vacated sub nom. Black v. California
(Feb. 20, 2007, No. 05-6793) ___ U.S. ___ [167 L.Ed.2d 36]. He also acknowledges that
we are generally bound by that court’s decisions under Auto Equity Sales, Inc. v. Superior

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Court (1962) 57 Cal.2d 450, 455. He is raising the point, he says, to preserve it for
federal court review. He further contends that counsel’s failure to raise the point in the
trial court does not waive it for purposes of appellate review, or in the alternative that
counsel’s failure to raise the point was ineffective assistance of counsel.
We reach the issue on the merits because any objection in the trial court would
manifestly have been futile in light of the then-extant decision in Black. The reason for
requiring a predicate objection is not to ease the workload of appellate courts by blindly
imposing the forfeiture of meritorious arguments, but to increase the efficiency of trial
proceedings and thwart procedural gamesmanship by requiring that the objecting party
give the trial court an opportunity to correct its mistakes. This objective, and the
resulting requirement, have no logical place where sustaining an objection would require
the trial court to defy paramount, binding authority. Such an objection is presumptively
futile, and its absence cannot operate to forfeit a challenge on appeal.
On the merits the only real question is whether Black’s treatment of consecutive
sentences remains the law of this state. The Black decision has now been vacated for
reconsideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]
(Cunningham). (Black v. California (Feb. 20, 2007, No. 05-6793)___ U.S. ___ [167
L.Ed.2d 36].) Cunningham itself was concerned only with the imposition of the upper
term under California sentencing law, not with consecutive sentencing, but the high court
vacated Black in its entirety. (See Black v. California, supra, ___ U.S. ___ [167 L.Ed.2d
36].) We see no reason to doubt that, like any other judgment, one rendered by our state
Supreme Court is rendered null and void when reversed or vacated. (See 9 Witkin, Cal.
Procedure (4th ed. 1997) Appeal, § 758, p. 783, italics added [“The effect of an
unqualified reversal . . . is to vacate the judgment, and to leave the case ‘at large’ for
further proceedings as if it had never been tried, and as if no judgment had ever been
rendered”].) It follows that the vacated decision in Black is not strictly binding on any
point of law.

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It appears to us, however, that upon reconsideration, the California Supreme Court
is likely to reach the same result as before with respect to consecutive sentences. In
Black the court identified two grounds for its conclusion that a defendant is not entitled to
a jury trial on factors justifying the imposition of consecutive sentences. The first ground
was “the same reasoning that leads us to conclude that a jury trial is not required on the
aggravating factors that justify imposition of the upper term,” i.e., that the choice to
impose consecutive sentences fell within a discretionary sentencing range, and “ ‘Judicial
factfinding in the course of selecting a sentence within the authorized range does not
implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and
Sixth Amendments.’ ” (Black, supra, 35 Cal.4th at p. 1262, quoting Harris v. United
States (2002) 536 U.S. 545, 558.) This rationale was repudiated in Cunningham, supra,
549 U.S. ___ [127 S.Ct. 856].
But Cunningham appears not to have affected, at least in any direct or obvious
way, Black’s second ground of decision for its treatment of consecutive sentences:
“Blakely’s underlying rationale,” which formed the basis for Cunningham, “is
inapplicable to a trial court’s decision whether to require that sentences on two or more
offenses be served consecutively or concurrently.” (Black, supra, 35 Cal.4th at p. 1262.)
“The jury’s verdict finding the defendant guilty of two or more crimes authorizes the
statutory maximum sentence for each offense. When a judge considers the circumstances
of each offense and the defendant’s criminal history in determining whether the sentences
are to be served concurrently or consecutively, he or she cannot be said to have usurped
the jury’s historical role. Permitting a judge to make any factual findings related to the
choice between concurrent or consecutive sentences does not create an opportunity for
legislatures to eliminate the right to a jury trial on elements of the offenses.” (Id. at
p. 1263.)

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We believe the court is likely to reaffirm this rationale and to once again hold that
the concerns underlying Blakely and its prodigy are not implicated by the imposition of
consecutive sentences.
D ISPOSITION
The judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.

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