P. v. Eagles

Filed 3/6/07 P. v. Eagles CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH WAYNE EAGLES,
Defendant and Appellant.
F050174
(Super. Ct. No. BF106770A)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. James M.
Stuart, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Michael P. Farrell and Stan Cross, Assistant Attorneys General, and Wanda Hill
Rouzan, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Gomes, J., and Kane, J.

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2.
In July 2004, appellant Kenneth Eagles was charged with four counts of unlawful
sexual intercourse with a minor (Pen. Code, § 261.5;1 counts 1-4) and one count of
willfully failing to register as a sex offender (§ 290, subd. (g)(2); count 5). In December
2004, pursuant to a plea agreement, the four counts of violating section 261.5 were
dismissed and appellant pled no contest to the count 5 offense. In January 2005, the
court suspended imposition of sentence and placed appellant on three years’ probation.
The conditions of probation included that appellant serve one year in county jail and have
no contact with Loretta T., the minor alleged to be the victim in the dismissed counts.
In March 2006, following a probation revocation hearing, the court found
appellant violated the latter condition of probation. In April 2006, the court imposed the
three-year upper term on the count 5 offense and awarded appellant 420 days of
presentence credit.
On appeal, appellant contends he was denied his rights to trial by jury and due
process of law under the United States Constitution because the court imposed the upper
term on count 5 based on circumstances in aggravation that were not found by a jury
beyond a reasonable doubt. We will vacate the sentence and direct the court to proceed
as set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s Criminal History
The report of the probation officer indicates the following. In 1971, when
appellant was 18 years old, he was convicted in New Mexico of sale of marijuana. He
was placed on, and successfully completed, five years’ probation. In 1996, he was
convicted of incest (§ 285) and was sentenced to a three-year prison term. Between April
1 All statutory references are to the Penal Code.

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3.
1998, when he was first paroled, and April 2002, when he was discharged, he violated his
parole on four occasions.
Sentencing
At the April 2006 sentencing hearing, the court found as circumstances in
mitigation that in the 1971 case appellant successfully completed probation and in the
instant case he had entered his plea at an early stage in the proceedings. As
circumstances in aggravation, the court found that appellant “took advantage of a
position of trust”; his “prior conviction as an adult is significant”; he had served a prison
term for a prior conviction; and his performance on parole had been unsatisfactory. The
court further found that the circumstances in aggravation outweighed those in mitigation,
and on that basis imposed the upper term.
DISCUSSION
Appellant argues that because the aggravating factors were not found by a jury
beyond a reasonable doubt, the imposition of the upper term violated his constitutional
rights to trial by jury and due process of law. He bases this contention on Blakely v.
Washington (2004) 542 U.S. 295 [124 S.Ct. 2531] (Blakely). In that case, the 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.’ ” (Id. at p. 301.)
The People, relying on People v. Black (2005) 35 Cal.4th 1238, contend the
imposition of the upper term was constitutional. In Black, the California Supreme Court
held that the imposition of upper terms under California law does not constitute an
increase in the penalty for a crime beyond the statutory maximum, and therefore “the
judicial fact finding that occurs when a judge exercises discretion to impose an upper
term sentence . . . does not implicate a defendant’s Sixth Amendment right to a jury
trial.” (Id. at p. 1244.)

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4.
However, very recently, and after briefing was completed in the instant case, the
United States Supreme Court, in Cunningham v. California (2007) 549 U.S. ___ [127
S.Ct. 856] (Cunningham) found that Black was wrongly decided. The high court held:
“Under California’s DSL [determinate sentencing law], an upper term sentence may be
imposed only when the trial judge finds an aggravating circumstance. [Citation.]
[A]ggravating circumstances depend on facts found discretely and solely by the judge. In
accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper
term, is the relevant statutory maximum. [Citation.] (‘[T]he “statutory maximum” . . . 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.’ (emphasis in original)). Because
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,
[citation], the DSL violates [the] . . . bright-line rule [announced in Apprendi v. New
Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348]]: Except for 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.]” (Cunningham,
supra, 127 S.Ct. at p. 868.)
Here, the trial court based its imposition of the upper term on at least one
aggravating factor that did not come within the prior conviction exception, viz., that
appellant took advantage of a position of trust, presumably in committing acts
underlying the dismissed charges.2 Because this factor was found by the judge, who was
2 It is clear that the court’s finding as a circumstance in aggravation that appellant
had suffered a conviction of incest in 1996 did not run afoul of Cunningham and Blakely.
However, neither of the two remaining aggravating factors, viz., appellant’s prior prison
term and his unsatisfactory performance on parole, are, precisely speaking “ ‘the fact of a
prior conviction . . . .’ ” (Blakely, supra, 542 U.S. at p. 301.) We nonetheless assume
without deciding that these two factors also fall within the prior conviction exception.

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5.
obligated to apply only a preponderance-of-the-evidence standard, and was not found
true beyond a reasonable doubt by a jury, reliance on this factor was error under
Cunningham.
Respondent also argues that because appellant did not challenge the imposition of
the upper term below, his claim of constitutional error is not cognizable on appeal. We
disagree.
At the time of appellant’s sentencing, the trial court was bound by Black, which
had been decided some 10 months prior. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) Thus, the constitutional objection appellant raises on appeal
would have been futile under controlling precedent. Therefore, that claim is properly
before us on this appeal. (People v. Welch (1993) 5 Cal.4th 228, 237 [“Reviewing courts
have traditionally excused parties for failing to raise an issue at trial where an objection
would have been futile or wholly unsupported by substantive law then in existence”].)3
This is not, however, the end of our analysis. A single factor in aggravation
suffices to support imposition of the upper term. (People v. Osband (1996) 13 Cal.4th
622, 730.) Thus, because the court based the imposition of the upper term on at least one
recidivist factor, i.e., a factor that came within the prior conviction exception, we cannot
say for certain on this record that the same term may not be imposed anew, consistent
with Cunningham. However, because the court found two mitigating factors and at least
one nonrecidivist factor, i.e., a factor upon which, under Cunningham, it could not rely,
3 In light of this conclusion, we need not consider appellant’s argument that his
constitutional right to a jury trial cannot be waived by implication or mere failure to
assert the right in the trial court. (See People v. Saunders (1993) 5 Cal.4th 580, 589, fn.
5.)

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6.
we likewise cannot say with any confidence that the court would have imposed the upper
term had it been aware it could not rely on nonrecidivist factors.4
“An appellate court is not restricted to the remedies of affirming or reversing a
judgment. Where the prejudicial error goes only to the degree of the offense for which
the defendant was convicted, the appellate court may reduce the conviction to a lesser
degree and affirm the judgment as modified, thereby obviating the need for a retrial.
[Citations.]’ [Citation.]” (People v. Edwards (1985) 39 Cal.3rd 107, 118.)
An analogous situation exists here. Accordingly, the judgment of sentence is
vacated, with directions as follows: If the People do not bring the matter before the trial
court for a contested resentencing hearing within 60 days after the filing of the remittitur
in the trial court, the trial court shall proceed as if the remittitur constituted a modification
of the judgment to reflect a sentence of the middle term of two years and shall so modify
the abstract of judgment. The People shall in writing notify the trial court and appellant’s
trial counsel of their intentions in this regard within 30 days after the filing of the
remittitur. Should the People state an intention to not contest the modification to the
middle term or fail to timely notify the trial court and unless the trial court on its own
4 The People argue that neither of the mitigating factors found by the court “should
be considered persuasive when determining appellant’s sentence.” First, the People
argue that appellant’s successful completion of probation “should not be considered a
mitigating factor” because (1) it occurred more than 30 years ago and (2) appellant “has
continued to violate the law” and therefore that probation, although completed, “was not
. . . successful . . . .” The People also argue that the fact that appellant pled no contest at
an early stage of the proceedings “should be discounted” because “[f]or his plea,
appellant received the benefit of having four felony charges for engaging in unlawful
sexual intercourse with a minor dismissed.”
However, appellant’s post-1971 criminal conduct does not render his successful
completion of probation invalid as a circumstance in mitigation. And even if, as
appellant suggests, an early admission of guilt cannot, as a matter of law, be considered a
circumstance in mitigation when a defendant admits guilt in exchange for the dismissal of
other charges, one valid mitigating factor remains.

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7.
decides to set a resentencing hearing, the trial court shall promptly modify the abstract of
judgment as provided herein.
DISPOSITION
The judgment of conviction is affirmed. The judgment of sentence is vacated with
directions to the trial court to proceed as ordered in the preceding paragraph.

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