P. v. Tith

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Filed 3/20/07 P. v. Tith CA1/5
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICKY TITH,
Defendant and Appellant.
A114094
(Sonoma County
Super. Ct. No. SCR481092)
Ricky Tith (Tith) appeals from a judgment entered after he pled guilty to felony
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).1 He contends that his
constitutional rights were violated by the imposition of the upper term of sentence, which
was based on one or more aggravating factors neither found by a jury nor admitted by his
plea. (See Blakely v. Washington (2004) 542 U.S. 296 (Blakely).) We remand for
resentencing.2
I. FACTS AND PROCEDURAL BACKGROUND
A first amended complaint (complaint) charged Tith with felony attempted murder
(§§ 664/187, subd. (a)), attempted carjacking (§§ 664/215, subd. (a)), and assault with a
1 All statutory references are to the Penal Code.
2 On January 10, 2007, we affirmed Tith’s sentence on the ground that we were
obliged to follow People v. Black (2005) 35 Cal.4th 1238 (Black), in which the California
Supreme Court held that Blakely did not apply to California’s determinate sentencing
law. After the decision in Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856
(Cunningham), Tith filed a timely petition for rehearing, which we granted. We also
ordered supplemental briefing from Tith and respondent, which they have provided.

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deadly weapon and with force likely to produce great bodily injury (§ 245, subd. (a)(1)).
As to the attempted murder charge, the complaint alleged the personal use of a deadly
and dangerous weapon (§ 12022, subd. (b)(1)). As to the charge of assault with a deadly
weapon, the complaint alleged the personal infliction of great bodily injury (§ 12022.7,
subd. (a)).
A. F ACTS
We summarize the facts as described in the felony presentence report prepared by
the Sonoma County probation office.
On January 29, 2006, victim Luciano drove his truck to the Days Inn Motel where
his girlfriend worked. As he got out of the truck, Luciano noticed a person (whom he
later identified as appellant Tith) approaching. Tith instructed Luciano, “Give me your
keys.” Luciano refused, and Tith repeated his demand. When Luciano again refused,
Tith pulled out a black-handled pocket knife and stabbed Luciano in the chest. Luciano’s
girlfriend called 911.
When police arrived, Luciano’s girlfriend pointed toward a group of men wearing
blue clothing. As the officers attempted to detain the group, two of the men ran into
room 129 of the motel. Police saw a one-inch laceration under Luciano’s left breast area,
which was bleeding.
Police officers knocked on the door to room 129. Tith opened the door and asked,
“What did we do?” Police ordered Tith and his brother Sithorn Tith (Sithorn) out of the
room and handcuffed them. Officers found a blue flannel jacket and a white hooded
sweatshirt with red stains, which were possibly bloodstains, under the mattress in room
129. A small folding pocketknife, with a two-and-a-half-inch locking blade, was on top
of the television.
Police showed Luciano photographs of several of the people detained at the motel.
Luciano said that the photograph of Tith most resembled the person who stabbed him.
Tith told officers that he had arrived drunk at a party at the motel with Sithorn and
did not remember much about it. An officer told Tith that police had found his knife, and
asked Tith what the victim had said that caused Tith to stab him. Tith replied, “Who did I

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stab?” After telling Tith that the victim had identified his photograph, the officer left the
interview room and returned with a blank videotape marked “Days Inn. Sunday 01-29-
06.” The officer left the room again, and Tith picked up the videotape, removed it from
the box, opened the protective flap, and broke the tape. When the officer returned, he
observed Tith putting the videotape back in the box and asked him why he broke the tape.
Tith claimed he did not know. Asked why he stabbed the victim, Tith again claimed he
did not know. Tith did not deny stabbing Luciano, but asserted merely that he was too
drunk to remember.
Medical records described Luciano’s wound as “a stab wound with isolated skin
and minimal superficial soft tissue injury.”
B. G UILTY P LEA AND S ENTENCE
Tith was arraigned, waived his right to a preliminary hearing, and entered a plea of
guilty to the charge of assault with a deadly weapon (§ 245, subd. (a)), in exchange for
dismissal of the remaining charges and allegations. Before entering his guilty plea, Tith
initialed and signed a written waiver of his constitutional rights, and confirmed to the
court that he understood and waived the rights set forth in the written waiver form, and
understood that the charge to which he was pleading constituted a felony strike.
The court subsequently denied probation and, after considering the circumstances
in aggravation and mitigation, sentenced Tith to the upper term of four years in state
prison. The remaining charges and allegations were dismissed pursuant to the plea
agreement.
This appeal followed.
II. DISCUSSION
Tith contends that the court violated Blakely, supra, 542 U.S. 296, by imposing the
upper term of sentence based on its own findings of aggravating factors, which had
neither been established by a jury beyond a reasonable doubt nor admitted by his plea.
The United States Supreme Court recently held that Blakely applies to California’s
determinate sentencing law. (Cunningham, supra, 549 U.S. __, 127 S.Ct. 856 [2007 U.S.
Lexis 1324].) In particular, the court ruled that California’s procedure for imposing

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upper terms violates the defendant’s Sixth and Fourteenth Amendment right to a jury trial
“[b]ecause circumstances in aggravation are found by the judge, not the jury, and need
only be established by a preponderance of the evidence, not beyond a reasonable doubt.”
(Cunningham, supra, 2007 U.S. Lexis 1324, at p. 35.) Under Cunningham, the
imposition of an upper term in California is unconstitutional if based on facts neither
admitted by the defendant nor found true by a jury beyond a reasonable doubt.
In the matter before us, the sentencing judge explained his refusal to grant
probation and the reason for his selection of the upper term, as follows: “The one thing I
am convinced of is the defendant is now remorseful. The source of that remorse, though,
I’m not too sure. It looked like he used every angle possible to this very knowledgeable,
streetwise 18-year-old with peripheral gang indications to weasel out of this thing. But
for an inch either way, he’d be here on a first degree murder case. [¶] He approaches a
man in a parking lot, a Latin man, who is there to pick up his girlfriend or help her out;
demands his car and his car keys, and then thrusts a knife into his body. Now that is
criminal, and that does not deserve probation. [¶] This is an 18-year-old conducting
himself like a very mature adult criminal person. And I’ve analyzed this case from top to
bottom, and I show no sympathy whatsoever. I don’t feel that he deserves any mercy
because of his youth. [¶] I’ve analyzed the criteria affecting probation and feel that he is
not an apt candidate for probation. The nature of the offense leads me to conclude that
the criteria -- or excuse me, the circumstances in aggravation and mitigation warrant that
this Court sentence this defendant to serve four years in the State Prison.”
The court’s reference to the “nature of the offense” as the basis for imposing the
four-year upper term refers to the aggravating factors set forth in rule 4.421(a) of the
California Rules of Court, which pertain to aspects of the crime such as the degree of
violence and the manner in which the offense was committed.3 None of these
3 Rule 4.421of the California Rules of Court sets forth the circumstances in
aggravation that may be considered in determining whether to impose an upper term of
sentence. Subdivision (a) of the rule describes circumstances relating to the nature of the
crime: “(a) Facts relating to the crime, whether or not charged or chargeable as

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aggravating factors was admitted by Tith or found true beyond a reasonable doubt by a
jury (or by the court). The upper term of sentence imposed against Tith is therefore
unconstitutional under Cunningham, and we must vacate the judgment and remand for
resentencing.
The People urge that Tith’s sentence should be upheld, notwithstanding
Cunningham, based on (1) principles of waiver and forfeiture; (2) Tith’s admission that
he used a knife; and (3) the doctrine of harmless error. Respondents’ contentions lack
merit.
The People first assert that Tith waived or forfeited the right to assert Blakely error
by stating in his written waiver form that he waived a jury trial “as to all charges,
allegations and prior convictions” and by failing to object on Blakely grounds at the
sentencing hearing. However, Tith’s attorney argued at sentencing that “there is nothing
that has been proved beyond a reasonable doubt as aggravating factors,” which may be
construed as a reference to the Blakely standard. Moreover, any objection on Blakely
grounds was futile at the time of Tith’s sentencing. Tith was sentenced in May 2006,
after the California Supreme Court held in Black that Blakely did not apply. Under these
circumstances, Tith is not barred from challenging his sentence under Blakely and
Cunningham. (See People v. Hill (1998) 17 Cal.4th 800, 820 [a defendant is excused
from failing to timely object if the objection would have been futile].)
The People next argue that Tith’s sentence was based on an aggravating factor
admitted by the defendant, because he admitted his use of a knife in perpetrating the
crime. The People assert that when Tith pleaded guilty, he admitted not only that the
enhancements, including the fact that: [¶] (1) The crime involved great violence, great
bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness; [¶] (2) The defendant was armed with or used a weapon at
the time of the commission of the crime; [¶] (3) The victim was particularly vulnerable;
[¶] . . . [¶] (9) The crime involved an attempted or actual taking or damage of great
monetary value . . . .” By contrast, subdivision (b) pertains to facts relating to the
defendant, and subdivision (c) refers to facts declared by statute to be aggravating
circumstances.

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force he used in committing the assault was likely to produce great bodily injury, but also
specifically that he used a knife, which is not a required element of aggravated assault.
The People further contend that the court relied on Tith’s use of a knife in imposing
sentence, because the court mentioned how Tith “thrust[] a knife into his [victim’s]
body.” Because a single aggravating circumstance is sufficient to render a defendant
eligible for the upper term, the People contend there was no Cunningham violation.
We disagree. The record on appeal does not indicate that Tith’s admission of his
use of the knife was anything more than his acknowledgement that he committed the
elements of the crime. The exchange at the sentencing hearing was as follows: “THE
COURT: Very well. You are accused in this Complaint, in the third count of the
Complaint, with willfully and unlawfully, on the 29th of January, committing assault on
one Luciano Guzman Gonzalez (phonetically spelled) with a deadly weapon, it being a
knife, and that this force was likely to produce great bodily injury. [¶] How do you plead
to that, sir? [¶] THE DEFENDANT: Guilty.” Tith was pleading guilty to a charge.
There was no pronouncement that he was admitting his use of the knife as an aggravating
factor or for the purpose of subjecting himself to an upper term of sentence. Nor could
this have been the purpose of the verbal exchange at the sentencing hearing, since it was
then California law that Blakely did not apply, and there was thus no need to obtain a
defendant’s admission to an aggravating factor.4
Furthermore, it is unclear how much the sentencing judge relied on Tith’s use of a
knife in imposing the upper term. The court specifically mentioned the knife only in
explaining why probation was inappropriate, not in explaining why the upper term was
selected: “[Tith] approaches a man in a parking lot, a Latin man, who is there to pick up
his girlfriend or help her out; demands his car and his car keys, and then thrusts a knife
4 We need not and do not consider the extent to which it must be shown that a
defendant admitted a fact with the understanding that it would be used to aggravate his or
her sentence. Even if such an understanding were unnecessary, Tith’s acknowledgement
of his use of the knife cannot be used to uphold his sentence because, as we explain next,
it is not clear that the upper term was imposed on this basis alone.

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into his body. Now that is criminal, and that does not deserve probation.” (Italics
added.) As for imposition of the upper term, the court simply stated: “The nature of the
offense leads me to conclude that the criteria -- or excuse me, the circumstances in
aggravation and mitigation warrant that this Court sentence this defendant to serve four
years in the State Prison.” (Italics added.) Even if the “nature of the offense”
incorporated all of the circumstances of the crime referenced by the court in deciding not
to grant probation, those circumstances included factual matters besides the use of the
knife that also could have been used to justify the upper term. For example, the court
indicated its view that the viciousness of the attack might have been racially or gang-
motivated (“He approaches a man in a parking lot, a Latin man”; see Cal. Rules of Court,
rule 4.421(a)(1)), and that Tith attempted to rob or carjack his victim (“demands his car
and his car keys”; see Cal. Rules of Court, rule 4.421(a)(9).) Neither of these other
circumstances was admitted by Tith or found true beyond a reasonable doubt. And while
the People argue that an upper term may be justified by only one aggravating factor, we
cannot tell from this record whether the sentencing court would have imposed the upper
term if it had considered only the use of the knife.
Lastly, the People argue that any Cunningham error in this matter was harmless
beyond a reasonable doubt. (See Washington v. Recuenco (2006) 126 S.Ct. 2546, 2551-
2553 [Blakely error is not structural, but subject to harmless error analysis for
constitutional questions]; Chapman v. California (1967) 386 U.S. 18, 24].) Under this
standard, relying on an unproven aggravating circumstance is harmless if there
was overwhelming or uncontradicted evidence of that circumstance, leaving no doubt that
the jury would have found the circumstance to be true. (People v. Sengpadychith (2001)
26 Cal.4th 316, 328 [Apprendi5 error harmless because no doubt the jury would have
found the same conclusion as the trial court].)
Here, the People argue, there is no dispute that Tith stabbed his victim in the chest
5 Apprendi v. New Jersey (2000) 530 U.S. 466.

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with a knife: he admitted to the probation officer “that he did stab the victim while
attempting to push him away” and acknowledged his use of the knife when entering his
guilty plea. The People also contend that a trier of fact would have found all or most of
the other aggravating circumstances true, based on the sentencing judge’s observation
that Tith “used every angle possible to this very knowledgeable, streetwise 18-year-old
with peripheral gang indications to weasel out of this thing,” “[b]ut for an inch either
way, he’d be here on a first degree murder case,” “I’ve analyzed this case from top to
bottom, and I show no sympathy whatsoever,” and “[t]his is an 18-year-old conducting
himself like a very mature adult criminal person.”
The People’s argument is unavailing. Even if it was undisputed that Tith used the
knife, as discussed above the record is not clear that the court would have imposed the
upper term of sentence based on this fact alone. As to the other circumstances of the
crime, the question is not whether the sentencing judge was firm in his conclusions as to
the nature of the offense; the question is whether there was evidence from which a jury
would have reached the same conclusion. The prosecution provided no competent
evidence in this regard. The People have failed to establish that the violation of Tith’s
constitutional rights was harmless beyond a reasonable doubt.
III. DISPOSITION
The judgment is vacated, and the matter is remanded for resentencing.
MILLER, J.∗
We concur.
JONES, P. J.
SIMONS, J.
∗ Judge of the Superior Court of San Francisco County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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