P. v. Rosas

Filed 4/28/05 P. v. Rosas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication
or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
RICARDO ROSAS,
Defendant and Appellant.
B170749
(Los Angeles County
Super. Ct. No.VA066423)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael L. Schuur, Judge. Affirmed in part, reversed in part and remanded.
Susan S. Bauguess, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.

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2
Ricardo Rosas appeals from judgment entered following a remand for the
limited purpose of resentencing after this court determined the trial court had
erred in concluding full, consecutive sentencing was mandatory under Penal Code
section 667.6, subdivision (d). Sentenced to prison for a total of 12 years for
having committed three counts of forcible lewd acts upon a child (Pen. Code,
§ 288, subd. (b)(1)) to whom he was a stranger (Pen. Code, § 1203.66,
subd. (a)(3)) with substantial sexual conduct (Pen Code, § 1203.066, subd. (a)(8))
and use of force, violence, duress, menace and fear of bodily injury (Pen. Code,
§ 1203.066, subd. (a)(1)), he appeals.1
After review of the record, appellant’s court-appointed counsel filed an
opening brief requesting this court to independently review the record pursuant to
the holding of People v. Wende (1979) 25 Cal. 3d 436, 441.)
On February 23, 2004, we advised appellant that he had 30 days within
which to personally submit any contentions or issues which he wished us to
consider. An extension to file a supplemental brief was granted to May 24, 2004.
On May 17, 2004, appellant filed a supplemental brief on appeal challenging the
sufficiency of evidence to support his convictions.
On June 15, 2004, this court filed its opinion stating we had examined the
entire record and we were satisfied that no arguable issues exist and that appellant
had, by virtue of counsel’s compliance with the Wende procedure and our review
of the record, received adequate and effective appellate review of the judgment
entered against him.
1
The evidence, as briefly stated in our opinion filed June 13, 2003, “proved that in
July 2001, appellant took the 10-year-old daughter of a woman he had recently met into
the bedroom of the woman’s apartment. He put the bed in front of the door, and then
began a sexual assault that included the licking of the girl’s vaginal area, rubbing and
penetration of her vaginal area with his finger, and rubbing and penetration of her
vaginal area with his penis.”

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3
On July 14, 2004, appellant filed a motion for this court to withdraw its
opinion and for permission to file a supplemental brief. On July 14, 2004, this
court ordered that the opinion filed on June 15, 2004, be withdrawn and
permission to file appellant’s supplemental brief, received July 14, 2004, was
granted. Respondent was granted permission to file a supplemental response
no later than August 13, 2004. Appellant was granted permission to file a
supplemental reply brief by September 2, 2004. Respondent did not file a
supplemental brief, nor did appellant file a supplemental reply brief.
Appellant contends based on Blakely v. Washington (2004) 542 U.S. ___
[124 S. Ct. 2531], remand to the trial court is required for a jury trial on the
aggravating factors or alternatively for imposition of a midterm sentence on the
base term and concurrent sentences on the subordinate counts.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi ), the
United States Supreme Court held: “Other than the fact of 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.”
In Blakely v. Washington, supra, 124 S. Ct. 2531, 2537, (Blakely), the Supreme
Court held that “the ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. . . . In other words, the relevant ‘statutory
maximum’ is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional
findings.” (Italics omitted.) It appears, and we shall assume for purposes of this
review, that the holding in Blakely applies to all cases not yet final when that case
was decided in June 2004. (See Schriro v. Summerlin (2004) 542 U.S. ___ [124
S.Ct. 2519].)

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4
At sentencing, the court stated that appellant “is the worst type of predator
that there is. He goes into a stranger’s house. He locks a little girl in a room and
then does all these things to her. I don’t know what can be much worse than that.
[¶] But, in any event, he’s not eligible for probation, because the special
allegations were found true. Probation is denied. The court selects count 1 as the
principal term or the base term. And the court selects the high term of eight
years. [¶] And because I do adopt all the aggravating circumstances, one through
five in the probation report, and I also adopt the mitigating circumstance in the
probation report.2
The court finds the aggravating factors listed in the probation
report 1 and 2 outweigh the mitigating circumstance. [¶] In considering
concurrent or consecutive sentences the court adopts the aggravating
circumstances 3, 4 and 5, in the probation report, and I intend to impose
consecutive sentences of one-third the midterm on counts 2 and 3, and that’s
pursuant to California Rules of Court 4.425(D). [¶] So, the sentence then would
be, on count 1, the high term of eight years; count 2, an additional and
2
The probation report listed as circumstances in aggravation:
“1. The crime involved a high degree of cruelty, viciousness, or
callousness.
“2. The victim was particularly vulnerable.
“3. The manner in which the crime was carried out indicates planning,
sophistication, or professionalism.
“4. The defendant took advantage of trust to commit the crime.
“5. Defendant has engaged in violent conduct which indicates a serious
danger to society.”
As the only circumstance in mitigation, it was reported that the defendant had no
prior record.

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consecutive two years; and on count 3, again, an additional and consecutive two
years, both those at one-third the midterm. So, the total aggregate sentence then
is 12 years in prison.”
Imposition of the upper term was a violation under Blakely. Under Penal
Code section 1170, subdivision (b), “[w]hen a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in aggravation or
mitigation of the crime.” Circumstances in aggravation cannot include a fact on
which an enhancement is based or a fact which is an element of the underlying
offense. (Cal. Rules of Court, rule 4.420(c) and (d).) Like the “standard range”
in the Washington sentencing scheme considered in Blakely, the middle term
under California law is the maximum sentence the court can impose “solely on
the basis of the facts reflected in the jury verdict or admitted by the defendant.”
(Blakely, supra, 124 S.Ct. 2531, 2537.)
Here, the court imposed the upper term based on the first two factors
referred to in the probation report, that the crime “involved a high degree of
cruelty, viciousness, or callousness” and that the victim “was particularly
vulnerable.” Appellant was entitled to have a jury determine the facts used to
impose the upper term, and the resulting sentence here is an invalid sentence.
With regard to consecutive sentences however, neither Blakely nor Apprendi
purport to create a jury trial right to the determination whether to impose
consecutive sentences as both cases involved a conviction for a single count.
Here, the court’s decision to sentence consecutively was made after a jury had
found appellant guilty beyond a reasonable doubt on the three charged offenses,
thus complying with the requirement of a jury trial and due process requirements.
In view of the jury’s findings, imposition of consecutive sentences did not violate
the holding in Blakely.

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6
DISPOSITION
The sentence is reversed and the matter remanded to the trial court for
resentencing in accordance with the views expressed herein. In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P.J.
We concur:
HASTINGS, J.
WHITE, J.*
_________________________________________________________________
*Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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