P. v. Vasquez

Filed 11/1/04 P. v. Vasquez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FERNANDO VASQUEZ,
Defendant and Appellant.
D042623
(Super. Ct. No. SCN140092)
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Reversed and remanded with directions.
After a jury acquitted Fernando Vasquez of first-degree murder and failed to reach
a verdict on the charge of second-degree murder, Vasquez pled guilty to voluntary
manslaughter (Pen. Code, § 1921) and personal use of a deadly weapon (§ 12022, subd.
(b)(1)). The court sentenced Vasquez to 12 years in state prison, consisting of the upper
term of 11 years for voluntary manslaughter and a consecutive one-year term for the
1 All further statutory references are to the Penal Code unless otherwise specified.

-- 1 of 10 --

2
personal use enhancement. Vasquez appealed, contending the trial court abused its
discretion by sentencing him to the upper term of voluntary manslaughter.
During the pendency of this appeal, we asked the parties for supplemental briefing
on the applicability of the recent United States Supreme Court case of Blakely v.
Washington (2004) __ U.S. __ [124 S.Ct. 2531] (Blakely) on this appeal. In his brief,
Vasquez contends that under Blakely, the court's factual findings justifying its imposition
of the upper term violate his Sixth Amendment right to a jury trial. The People respond
(1) Vasquez forfeited this claim by failing to object to the sentence in the proceedings
below; (2) Vasquez was required to obtain a certificate of probable cause; (3) there is no
constitutional violation under Blakely; and (4) even if the sentence was erroneously
imposed, the error is harmless. We disagree, reverse the judgment, vacate the sentence
imposed and remand for resentencing consistent with Blakely.
FACTUAL AND PROCEDURAL HISTORY
On September 2, 1999, Vasquez killed Gustavo Vega during a fight. Vega was
stabbed seven times in his left leg, right buttocks, abdomen, and chest.
After a nine-day jury trial, the jury acquitted Fernando Vasquez of first-degree
murder but could not reach a verdict on the charge of second-degree murder. After the
court declared a mistrial, Vasquez pled guilty to voluntary manslaughter and personal use
of a deadly weapon. The plea agreement provides that Vasquez "unlawfully killed
Gustavo Vega with a knife during a sudden quarrel/heat of passion and in the honest but
unreasonable belief in the necessity of self defense." Vasquez initialed that he
understood that as a result of the plea, he could receive a maximum sentence of 12 years.

-- 2 of 10 --

3
At the sentencing hearing, prior to counsels' arguments, the court stated that it
"was in general agreement" with the probation department's recommendation that
Vasquez be sentenced to the upper term for manslaughter. The court continued, "I did
find the aggravants under [Rules of Court, rule] 408 as indicated by the probation
department for the defendant fleeing the scene and the country. [¶] The primary one that
you may want to concentrate on in your remarks that I agreed with was under [Rules of
Court, rule] 421 (a)(1). It did appear from the state of the evidence that the stabbing
occurred while the decedent was running away from [Vasquez]. And my recollection of
the testimony, in reviewing the report, and everything, was that the victim was on the
ground, was not defending himself — or not able to defend himself, and was stabbed
again repeatedly by [Vasquez]. So I did find [Rules of Court, rule] 421 (a)(1) to be the
primary circumstance in aggravation."
Defense counsel objected to the court's finding of aggravating factors and pointed
out that under the parameters of the plea agreement, Vasquez killed Vega in the honest,
but unreasonable belief in the need for self-defense, which negated the presumption that
he killed Vega in a cruel manner. Defense counsel argued that the court's factual findings
did not comport with either Vasquez's testimony or other evidence, including the
placement of the wounds and the lack of defensive wounds.
Although the court agreed that Vasquez's lack of a prior record was a "substantial
mitigant," it imposed the upper term, finding "the number of knife wounds, and how this
stabbing occurred, and fleeing the scene, and changing his name to be very substantial
aggravants in this case."

-- 3 of 10 --

4
DISCUSSION
I. Application of Blakely
In People v. George (2004) 122 Cal.App.4th 419, 424 - 425 (George), we
explained Blakely's applicability to California's determinate sentencing scheme as
follows:
"In Blakely, the United States Supreme Court held that ' "[o]ther 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." '
[Citation.] The question of whether Blakely precludes a trial court from making findings
on aggravating facts in support of an upper term sentence is currently under review by the
California Supreme Court. [Citations.] Pending resolution of the issue by the high court,
we must undertake a determination of whether Blakely applies under the circumstances
presented.
"Under California's determinate sentencing law, where a penal statute provides for
three possible prison terms for a particular offense, the court is required to impose the
middle term unless it finds, by a preponderance of the evidence, that the circumstances in
aggravation outweigh the circumstances in mitigation. [Citations.] The Attorney
General argues that the imposition of an upper term sentence under the California
determinate sentencing scheme is not the same as the imposition of a penalty beyond the
standard range and thus does not implicate Blakely. The attempted distinction, however,
is one without a difference. Although an upper term is a 'statutory maximum' penalty in
the sense that it is the highest sentence a court can impose for a particular crime, it is not

-- 4 of 10 --

5
necessarily the 'maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant,' which is the relevant standard
for purposes of applying Blakely. [Citations.]
"As explained in Blakely, when the judge's authority to impose a higher sentence
depends on the finding of one or more additional facts, 'it remains the case that the jury's
verdict alone does not authorize the sentence,' as required to comply with constitutional
principles. [Citation.] The same is true here. Because the maximum penalty the court
can impose under California law without making additional factual findings is the middle
term, Blakely applies. Thus, the question becomes whether the trial court could properly
rely on any of the cited factors as the basis for its decision to impose the upper term
without violating Blakely."
Under Blakely, a jury trial is required to determine beyond a reasonable doubt any
fact that "the law makes essential to the punishment," other than the fact of a defendant's
prior conviction. (Blakely, supra, 125 S.Ct. at p. 2537 & fn. 5.) Here, the court based its
decision to impose the upper term for manslaughter on (1) Vasquez's knifing the victim
seven times while the victim was running away or on the ground unable to defend
himself; and (2) Vasquez's fleeing the country and changing his name. Because the jury
made no such findings, the court's decision to select the upper term sentence violated
Vasquez's Sixth Amendment right to a jury trial.
II. Prejudice
The People contend the court's failure to apply Blakely is harmless under the
standard of Chapman v. California (1967) 386 U.S. 18. The People argue that because

-- 5 of 10 --

6
the evidence as to the aggravating factors applied by the court was overwhelming and
essentially uncontroverted, any jury would have found the aggravating factors to be true.
As we explained in People v. Lemus (2004) 122 Cal.App.4th 614, 622: "The
decision in Blakely is premised on the notion that the defendant has a constitutional right
under the Sixth Amendment to a jury trial as to any factual determination which increases
the sentence which could be imposed based upon the finding of guilt on the offense
alone. In this case, we have concluded [defendant] had a constitutional right to a jury
trial on any fact that would justify the trial court increasing the sentence beyond the
presumptive middle term . . . . Accordingly, we believe that the loss of the jury trial right
cannot be found harmless on the theory that if a jury trial had been held the defendant
would have lost on the issue. The point of Blakely is that the jury trial must be held."
In any event, we do not find the error harmless in this case. The People
mistakenly characterize the evidence of the aggravating factors as uncontroverted.
Vasquez vigorously argued that the court's fact-finding was contradicted by Vasquez's
trial testimony and other evidence offered at trial.
III. Waiver
We reject the People's contention that Vasquez waived the Blakely sentencing
issue by failing to object under Apprendi v. New Jersey (2000) 530 U.S. 466, 490,
which provides: "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." As we explained in George, supra,

-- 6 of 10 --

7
122 Cal.App.4th at p. 424: "In People v. Scott (1994) 9 Cal.4th 331 (Scott), the
California Supreme Court held that a defendant's failure to challenge in the trial court the
imposition of an aggravated sentence based on erroneous or flawed information waived
that issue for purposes of appeal. The Attorney General argues that the holding of Scott
is equally applicable here. However, the Scott court reasoned that its waiver rule was
necessary to facilitate the prompt detection and correction of error in the trial court, thus
reducing the number of appellate claims and preserving judicial resources [citation], a
pragmatic rationale that does not support the application of the waiver rule here. Prior to
Blakely, California courts and numerous federal courts consistently held that there was no
constitutional right to a jury trial in connection with a court's imposition of consecutive
sentences. [Citations.] No published case in California held that a different rule applied
in connection with the imposition of an upper term sentence. [Citation.] In light of this
state of the law, [defendant's] assertion of a challenge to the imposition of an upper term
sentence would not have achieved the purpose of prompt detection and correction of error
in the trial court. Further, because Blakely was decided after [defendant's] sentencing,
[defendant] cannot be said to have knowingly and intelligently waived his right to a jury
trial." Additionally, Vasquez vigorously argued against the court's imposition of an
upper term sentence, contending the court's factual findings were outside the parameters
of the plea agreement and did not comport with the evidence presented at trial. Under
these circumstances, it would be unreasonable to find Vasquez had abandoned a
constitutional challenge of which he was unaware.

-- 7 of 10 --

8
IV. Certificate of Probable Cause
Finally, we reject the People's contention that Vasquez was required to obtain a
certificate of probable cause. Defendants who enter a guilty plea may not appeal their
convictions unless the trial court executes and files a certificate of probable cause.
(§ 1237.5) There is an exception to this requirement for "issues regarding proceedings
held subsequent to the plea for purpose of determining the . . . penalty to be imposed."
(People v. Buttram (2003) 30 Cal.4th 773, 780 (Buttram); see Rules of Court, rule 30,
subdivision (b)(4)(B) [certificate of probable cause not required for "grounds that arose
after entry of the plea and do not affect the plea's validity"].) To determine whether
section 1237.5 applies to the imposition of a sentence, "the critical inquiry is whether a
challenge to the sentence is in substance a challenge to the validity of the plea, thus
rendering the appeal subject to the requirements of section 1237.5." (Buttram, supra, 30
Cal.4th at p. 782.) An appeal of a sentence challenges the validity of the plea "if the
sentence was part of a plea bargain. [Citation.] It does not if it was not . . . ." (People v.
Lloyd (1998) 17 Cal.4th 658, 665.)
The People's line of cases are easily distinguishable. (People v. Panizzon (1996)
13 Cal.4th 68, 79; People v. Cole (2001) 88 Cal.App.4th 850, 868; People v. Young
(2000) 77 Cal.App.4th 827, 834.) Unlike the defendants in those cases, Vasquez does not
contend his sentence violates the prohibition against cruel and unusual punishment.
Instead, he contends the court violated his Sixth Amendment right to a jury trial by
sentencing him to the upper term based upon on facts not determined by a jury beyond a
reasonable doubt. Accordingly, a certificate of probable cause is not required.

-- 8 of 10 --

9
DISPOSITION
The judgment is reversed. The sentence is vacated and the case is remanded to the
superior court to conduct a new sentencing hearing consistent with the principles
discussed in this opinion.
O'ROURKE, J.
I CONCUR:
HUFFMAN, Acting P. J.

-- 9 of 10 --

1
IRION, J., Dissenting.
For the reasons stated in People v. Wagener (2004) ___ Cal.App.4th ___ [2004
Cal.App. LEXIS 1760], I respectfully dissent from the conclusion in part I of the majority
opinion that the holding of Blakely v. Washington (2004) 542 U.S. ___ [124 St.Ct. 2531,
159 L.Ed.2d 403] requires remand for resentencing in this case.
I agree that under the holding of People v. Buttram (2003) 30 Cal.4th 773, 780,
Vasquez was not required to obtain a certificate of probable cause to challenge the
imposition of the upper term sentence. I would reach his argument that the trial court
abused its sentencing discretion in that regard, but affirm the judgment under the rule that
precludes a reviewing court from reweighing mitigating and aggravating factors. (People
v. Scott (1994) 9 Cal.4th 331, 355 ["The reviewing court cannot substitute its reasons for
those omitted or misapplied by the trial court, nor can it reweigh valid factors bearing on
the decision below"].)
IRION, J.

-- 10 of 10 --