P. v. Buckley

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Filed 5/7/07 P. v. Buckley CA4/2
Different opinion incorrectly posted 5/7/07 as E039664
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JULES BUCKLEY,
Defendant and Appellant.
E039664
(Super.Ct.No. FSB047392)
OPINION
In re JULES BUCKLEY,
on Habeas Corpus.
E041155
(Super.Ct.No. FSB047392)
APPEAL from the Superior Court of San Bernardino County. Brian S.
McCarville, Judge. Affirmed in part and reversed in part with directions.
ORIGINAL PROCEEDING: Petition for writ of habeas corpus. Brian S.
McCarville, Judge. Petition denied.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and
Appellant.

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Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General,
Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy
Attorney General, for Plaintiff and Respondent.
Prior to trial, defendant admitted that he had suffered a prior conviction of spousal
abuse within the meaning of Penal Code section 273.5, subdivision (e)1 and that he had
suffered a prior strike conviction within the meaning of sections 667, subdivisions (b)
through (i) and 1170.12, subdivisions (a) through (d). A jury thereafter found defendant
guilty of corporal injury to a spouse. (§ 273.5, subd. (a).) The jury also found true that
defendant had personally inflicted great bodily injury on the victim within the meaning of
section 12022.7, subdivision (a). As a result, defendant was sentenced to a total term of
13 years in state prison as follows: the upper term of five years on the substantive count,
doubled due to the prior strike, plus three years consecutive on the great bodily injury
enhancement.
In his appeal, defendant contends (1) his counsel was ineffective for failing to
object to the imposition of the upper term, and (2) he was deprived of his federal and
state constitutional rights to a jury trial and due process under Blakely v. Washington
(2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New
Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial
1 All future statutory references are to the Penal Code unless otherwise
stated.

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court imposed the upper term. In his petition for writ of habeas corpus, defendant claims
his counsel was ineffective for allegedly refusing to allow him to testify at his trial.
We deny defendant’s writ of habeas corpus petition; however, we agree, as we
must, that defendant’s upper term sentence runs afoul of Cunningham v. California
(2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham).2
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 2, 2004, defendant and Kentrell Buckley were married, and Kentrell was
six months pregnant with their first child. They were both unemployed, receiving
supplemental social security funds, and living in a single motel room in San Bernardino
County. They had a “loving relationship.”
About 9:00 p.m., Kentrell was cooking meat in a skillet on a little stove on the
floor of the motel room. While cooking the meat, she got into in argument with
defendant because he accused her of cheating on him. He became very upset and kicked
the skillet, causing hot grease to spill onto Kentrell’s legs.3 The grease burned her legs
very badly.
2 Because we remand the matter for a new sentencing hearing, we need not
address defendant’s contention that his counsel was ineffective for failing to object to the
imposition of the upper term.
3 At trial, Kentrell testified that as she uncrossed her legs to get up, she
accidentally kicked the skillet with her foot and the grease spilled forward onto her legs
and partially onto her feet. She claimed that she felt heat on her toes, but her toes did not
get burned.

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Kentrell called her mother, Samantha Sims, to pick her up and to take her to the
hospital. She told Sims that she had burned her legs accidentally, because she was afraid
defendant would hit her again. When her mother arrived, defendant answered the door
and stated Kentrell had been burned. Kentrell’s mother did not see anyone in the room
but Kentrell and defendant.4 Kentrell looked terrible and was in excruciating pain.
Kentrell’s mother asked defendant to take Kentrell to the hospital, but defendant refused,
stating he had “something to do.” Defendant, however, helped Kentrell get into her
mother’s car. Kentrell told her mother that she had burned herself with hot grease while
she was cooking on the floor.
On April 14, 2004, Kentrell admitted to her mother that defendant had burned her
with the grease. Kentrell told her that defendant came out of the bathroom, said
something about her cheating on him, and kicked the hot grease onto her legs.5 Sims
4 At trial, Kentrell testified that her friend Prince Matthews and his wife
Sandra were also in the motel room. She claimed that Matthews was in the bathroom
when her mother arrived, and Sandra was in the van. She further asserted that she did not
ask defendant for a ride to the hospital because they did not have a car. She stated that
defendant did not go to the hospital because he did not like hospitals and because she
(Kentrell) wanted him to stay at home. She claimed that she was not afraid of defendant
and that the incident was an accident.
5 Kentrell testified that she did not remember telling her mother that
defendant was mad and had kicked the skillet onto her legs. She also did not remember
going to the police and talking to Officer Corral on April 14, 2004. She claimed that
after she discovered that defendant had a girlfriend, she (Kentrell) went to the police
station and made a false report. She told the police that defendant thought she was
flirting with Prince Matthews, so defendant walked past her and kicked the skillet handle.
Kentrell further testified that she was being untruthful when she stated that she and
defendant never argued, because she was afraid that something might happen to her. She
acknowledged that she still loved defendant.

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then took her daughter to the police station to report the incident. Kentrell said that she
had lied earlier about what had happened because defendant told her not to tell anyone
the truth. Sims testified that she had no reason to “make up a story” against defendant
and that Kentrell had no reason to be afraid of her mother or to be afraid to testify.6
A prior incident of spousal abuse was admitted at trial. In 1999, defendant
accused his then-girlfriend of cheating on him and bit her on the cheek hard enough to
draw blood. She called the police, and defendant fled to a neighbor’s house.
Prince Matthews, a friend of defendant, testified on behalf of the defense. He
stated that defendant was a minister and that he and defendant were rappers in a Gospel
music band. On April 2, 2004, he and his ex-wife were at defendant and Kentrell’s motel
room for about four hours. They had set up music equipment in the bathroom and were
practicing for an upcoming concert at a church in Victorville. Defendant and Matthews
were in the bathroom when he heard a scream. Defendant left the bathroom, and
Matthews followed almost immediately thereafter. Matthews saw Kentrell sitting on the
floor; a skillet was on top of a burner on a box, a puddle of grease was on the carpet, and
it looked like Kentrell’s legs were burned. Neither Matthews nor defendant was aware
that Kentrell had been cooking, although Matthews had smelled ground beef cooking.
Defendant helped Kentrell into bed while she called her mother. About 20 to 25 minutes
later, Kentrell went to the hospital with her mother, and defendant went back inside and
continued to make music with Matthews.
6 Kentrell testified that her mother did not believe that Kentrell had burned
her own legs and that her mother had blamed defendant because she did not like him.

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Matthews stated that he did not see defendant kick the skillet and was not aware of
any anger, yelling, or fighting on defendant’s part during the four hours he was there.
Defendant never told Matthews he was jealous of him, and defendant never accused
Matthews of having anything to do with Kentrell. Matthews also claimed that Kentrell
never made a pass at him.
Matthews admitted that he had prior criminal convictions for assault with a deadly
weapon and giving false information to a police officer.
Robert Board, a defense investigator, also testified on behalf of the defense. He
stated that when he interviewed Kentrell at her apartment on March 5, 2005, she said that
she was cooking tacos on an electric hot plate that was sitting on a cardboard box. She
did not know exactly how she did it, but she accidentally hit the skillet. The skillet fell
over, and the grease burned her legs. She did not say that defendant had burned herf.
She claimed that she did not fill out a police report against defendant and did not recall
ever going to the police station. She further told Board that there were three people in the
room: herself, defendant, and Matthews.
II
DISCUSSION
A. Defendant’s Appeal
Citing Blakely and Apprendi, defendant contends he was denied his federal Sixth
Amendment constitutional right to a jury trial when the court imposed the upper term of
five years on his substantive offense of corporal injury to a spouse. (§ 273.5, subd. (a)).
In light of the United States Supreme Court’s recent decision in Cunningham, we

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conclude the court’s imposition of the upper term based on judicial factfinding denied
defendant his federal constitutional rights to a jury trial and proof beyond a reasonable
doubt, and thus the matter must be remanded for resentencing on the substantive offense.
At the sentencing hearing the court stated: “In weighing the aggravating factors
and mitigating factors, the aggravating outweigh the mitigating. In accordance with
[California Rules of Court, rules] 4.421(b) subdivisions (1), (2), and (5), the Court
chooses the aggravated term.” The three circumstances in aggravation cited by the court,
per the recommendation of the probation report, were that defendant had engaged in
violent conduct, which indicated a danger to society (Cal. Rules of Court, rule
4.421(b)(1))7; defendant’s prior convictions as an adult are of increasing seriousness (rule
4.421(b)(2)); and defendant’s prior performance on summary probation was
unsatisfactory (rule 4.421(b)(3)).
Under California’s determinate sentencing law (DSL), where a penal statute
provides for three possible prison terms for a particular offense, the sentencing court is
required to impose the middle term unless it finds, by a preponderance of the evidence,
that “there are circumstances in aggravation or mitigation of the crime.” (§ 1170, subd.
(b); see also rule 4.420(a) & (b).) “Selection 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.” (Rule 4.420(b).) “Generally, determination of the
appropriate term is within the trial court’s broad discretion [citations].” (People v. Lamb
7 All further rule references are to the California Rules of Court.

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(1988) 206 Cal.App.3d 397, 401.) “A single aggravating factor is sufficient to impose an
aggravated upper prison term where the aggravating factor outweighs the cumulative
effect of all mitigating factors . . . .” (People v. Nevill (1985) 167 Cal.App.3d 198, 202.)
The sentencing court need not list all applicable aggravating factors (ibid.) or state
reasons for rejecting mitigating factors. (People v. Combs (1986) 184 Cal.App.3d 508,
511.)
In Cunningham the United States Supreme Court held that California’s DSL, by
placing sentence-elevating factfinding within the trial judge’s province, violates a
criminal defendant’s right to a jury trial safeguarded by the Sixth and Fourteenth
Amendments to the federal Constitution. (Cunningham, supra, 127 S.Ct. at p. 860.)
Cunningham explained that because circumstances in aggravation are found by the judge,
not the jury, and need only be established by a preponderance of the evidence rather than
by proof beyond a reasonable doubt, the DSL violates the bright-line rule in Apprendi
and that any fact, other than the fact of a prior conviction, that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt. (Cunningham, at p. 868.) Quoting Blakely, supra, 542 U.S.
at pages 303-304 for the proposition 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,’” the Cunningham court
concluded that “[i]n accord with Blakely, therefore, the middle term prescribed in
California statutes, not the upper term, is the relevant statutory maximum.”
(Cunningham, at p. 868.)

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Here, the jury’s verdict alone limited the permissible sentence on the substantive
offense of spousal abuse to the middle term of four years. (See Cunningham, supra, 127
S.Ct. at p. 860.) The additional judicial factfinding, however, resulted in the upper term
in violation of defendant’s right to a jury trial safeguarded by the Sixth and Fourteenth
Amendments to the federal Constitution. (Cunningham, at p. 860.)
The People assert that defendant forfeited his claim of Blakely error by failing to
assert it below. Defendant responds that the claim was not forfeited because it would
have been futile for his counsel to have asserted that challenge in the trial court. Until
very recently, the holding of the California Supreme Court in People v. Black (2005) 35
Cal.4th 1238 compelled the conclusion that a criminal defendant’s constitutional rights
are not abridged when a court sentences him or her to the upper term under California’s
DSL. Our Supreme Court decided Black on June 20, 2005, about five months before
defendant’s sentencing hearing. At that time, the trial court was compelled to follow
Black. Therefore, any Blakely objection that defense counsel might have made
concerning the trial court’s imposition of an upper term sentence would have been futile.
Under these circumstances, defendant’s Blakely challenge was not forfeited. (People v.
Birks (1998) 19 Cal.4th 108, 116, fn. 6; People v. Turner (1990) 50 Cal.3d 668, 703-
704.)
The People also argue that in this case we need not reverse the court’s upper term
sentence because the recidivism exception applies. They also assert that any
Cunningham error was harmless beyond a reasonable doubt under Chapman v. California
(1967) 386 U.S. 18, 24, because the jury would have found some or all of the aggravating

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factors true had they been presented to the jury for determination. These contentions are
unavailing.
The court imposed the upper term sentence in this case because it found three
aggravating factors and no mitigating factors. It is true that a single aggravating factor is
sufficient to impose an aggravated upper prison term where the aggravating factor
outweighs the cumulative effect of all mitigating factors (People v. Nevill, supra, 167
Cal.App.3d at p. 202); however, the court is prohibited from using the truth of the prior
convictions under the prohibition against the dual use of facts. A sentencing court may
not rely on the same fact to impose an aggravated term and an enhancement. (§ 1170,
subd. (b); rule 4.420(c).) The court here relied on defendant’s prior strike conviction and
prior spousal abuse conviction to enhance his sentence; the court also imposed a
consecutive three years for the great bodily injury enhancement. If the court were to use
the prior convictions to aggravate defendant’s sentence, this would be an impermissible
dual use of facts. (People v. Bowen (1992) 11 Cal.App.4th 102, 105.) In addition,
because we can only speculate which, if any, of the aggravating factors relied on by the
court the jury would have found true and what effect those findings would have had on
the court at sentencing, we cannot find the Blakely error to have been harmless beyond a
reasonable doubt.
Accordingly, we vacate the court’s imposition of the upper term sentence and
remand this matter for further proceedings not inconsistent with this opinion and
Cunningham.

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B. Defendant’s Petition for Writ of Habeas Corpus
Defendant contends he was denied effective assistance of counsel because his
counsel purportedly refused to allow him to testify at trial.
1. Additional Facts
Attached to defendant’s petition is his declaration stating that after Kentrell’s
mother finished testifying, he “started to raise [his] hand,” so he could “get on the stand
to speak [his] side of the story,” but his trial counsel grabbed his hand and pulled it down,
telling him that he did not have the right to speak and that he was not going to get “on the
stand to speak at all . . . .” He told her that he had a right to speak, but Attorney Torres
told him “no.” Attached to defendant’s petition is also a declaration from Attorney
Torres, indicating, in relevant part, that she did not remember defendant raising his hand
and asking her for the opportunity to testify. Attorney Torres further stated, “[I]f
[defendant] had wanted to testify, even though it might not be in his best interest, . . . I
nevertheless would have honored and respected his right to testify.”
Following the testimony of Kentrell’s mother, the prosecution called one more
witness and then rested its case. That afternoon, the defense called one witness. Before
court was adjourned, Attorney Torres indicated to the court that the defense might present
one other witness and possibly the defense investigator. There was no complaint from
defendant or any indication the he wanted to testify. The following morning, before the
jury was brought in, the court asked defense counsel whether there was “[a]nything to
take up on behalf of defense[.]” Attorney Torres indicated there was not, and again there
was no complaint or objection from defendant. Thereafter, the defense completed

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presenting its case and rested. Defendant still did not complain, object, or indicate that he
wanted to testify.
During the discussion of jury instructions, when it was indicated that the court
would be giving CALJIC Nos. 2.60 and 2.61 regarding a defendant not testifying,
defendant said nothing. Throughout the remainder of the trial, defendant never told the
court that he was deprived of his right to testify. It was only at the sentencing hearing,
some four months later, that he claimed he never received an opportunity to testify at
trial.
Because defendant asserts his counsel prevented him from testifying, his claim
may be based upon ineffective assistance of counsel as well as denial of his right to
testify. Construed either way, we find no error.
2. Analysis
In order to establish a claim of ineffective assistance of counsel, defendant must
demonstrate “(1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel’s
deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’
that, but for counsel’s failings, defendant would have obtained a more favorable result.
[Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in
the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing,
among other cases, Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80
L.Ed.2d 674].) Hence, such a claim has two components: deficient performance and

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prejudice. If defendant fails to establish either component, his claim fails. (Strickland, at
p. 687; People v. Williams (1997) 16 Cal.4th 153, 214-215.)
In evaluating trial counsel’s actions, “[a] court must indulge a strong presumption
that counsel’s acts were within the wide range of reasonable professional assistance.
[Citation.] Thus, a defendant must overcome the presumption that the challenged action
might be considered sound trial strategy under the circumstances. [Citation.]” (People v.
Dennis, supra, 17 Cal.4th at p. 541.) Although trial counsel has the authority to control
the judicial proceedings, that authority may not be used to deprive a defendant of “certain
fundamental rights.” (People v. Brown (1986) 179 Cal.App.3d 207, 215.) These rights
include the right to testify at his trial, even, if necessary, against the advice of counsel.
(People v. Bradford (1997) 15 Cal.4th 1229, 1332; People v. Robles (1970) 2 Cal.3d 205,
214-215.)
It is well established that a criminal defendant’s right to testify is a fundamental
right; however, the right must be “timely” asserted. (People v. Robles, supra, 2 Cal.3d at
p. 215.) That is, a defendant must apprise the court that he or she desires to testify at a
time during the trial proceeding when the right can be accorded to him or her. (People v.
Guillen (1974) 37 Cal.App.3d 976, 984.)
“While the defendant has the right to testify over his attorney’s objection, such
right is subject to one significant condition: The defendant must timely and adequately
assert his right to testify. [Citation.] Without such an assertion, ‘. . . a trial judge may
safely assume that a defendant who is ably represented and who does not testify is merely
exercising his Fifth Amendment privilege against self-incrimination and is abiding by his

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counsel’s trial strategy.’ [Citations.] When the record fails to show such a demand, a
defendant may not await the outcome of the trial and then seek reversal based on his
claim that despite expressing to his counsel his desire to testify, he was deprived of that
opportunity.” (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231-1232 (Hayes).)
Unless the defendant has made a timely demand, the decision whether to permit the
defendant to testify “goes to the heart of trial tactics” and therefore “rarely would support
a claim of ineffective assistance of counsel.” (People v. Lucas (1995) 12 Cal.4th 415,
444.)
In Guillen, defendant did not testify at trial. He was found guilty and made a
motion for new trial. For the first time at the posttrial hearing on his motion, Guillen
informed the court that he had wanted to testify but did not do so upon his attorney’s
advice. The trial court denied the motion. On appeal, the appellate court held the
defendant had not timely asserted his fundamental right to testify at a time when the right
could have been accorded to him. (People v. Guillen, supra, 37 Cal.App.3d at pp. 984-
985.) The same holds true here, where defendant first apprised the court that he wanted
to testify four months after completion of the trial.
In Hayes, a court trial, the defendant engaged in several outbursts during the
course of the testimony of the victim, in which he expressed anger, claimed the victim
was biased and untrustworthy, and attempted to cross-examine the victim directly or
argue his case. During these outbursts he made several comments, such as “‘Could I
speak? Could I speak?’” and stated that he wanted “‘to speak on [his own] behalf.’”
(Hayes, supra, 229 Cal.App.3d at p. 1232, fns. 8 & 9.) Hayes was removed from the

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courtroom, the prosecution rested, and then the defense rested without presenting any
evidence. Defense counsel confirmed that he never intended to put defendant on the
stand to testify. (Id. at p. 1231) On appeal, Hayes argued the court denied him his right
to testify. The Court of Appeal held that Hayes never adequately or timely asserted his
right to testify. His outbursts and statements during the trial, read in context, did not
“reflect any unequivocal statement that he wished to take the stand to testify.” (Id. at p.
1232.)
In the present matter, the record supports Attorney Torres’s assertion that
defendant did not insist he be allowed to testify. Assuming defendant did “raise his
hand” and indicate a desire to “get on the stand to speak [his] side of the story” following
Sims’s testimony, and assuming his attorney pulled his hand down and told him no, it is
reasonable to assume she did so because he did not have the right to testify at that time,
since the prosecution had not yet rested. As in Hayes, these statements by the defendant
could be “construed in various ways . . . but do[] not reflect a clear and timely assertion
of his desire to take the witness stand.” (Hayes, supra, 229 Cal.App.3d at p. 1232, fn. 9.)
There is no indication, either in the record or in the writ petition, that defendant ever
again indicated a desire to testify. Defendant therefore acquiesced in counsel’s tactical
decision to not have him testify, and he does not show his attorney’s representation was
deficient in making that tactical decision. We find there was no ineffective assistance of
counsel.

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III
DISPOSITION
The upper term sentence is vacated and the matter is remanded to the trial court
for the limited purpose of resentencing. Consistent with this opinion, Blakely, and
Cunningham, the trial court shall resentence defendant with respect to the substantive
offense of spousal abuse. In all other respects, the judgment is affirmed.
The petition for writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting P.J.
MILLER
J.

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