P. v. Dawson

Filed 7/3/08 P. v. Dawson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

----

Defendant Marc Joseph Dawson pled guilty to three counts of check forgery (Pen. Code,  470, subd. (d)) and one count of possessing blank checks with the intent to defraud ( 475, subd. (b)).^[1] He agreed that all other charges 13 counts alleged in two separate informations be dismissed with a Harvey waiver.^[2] The court sentenced defendant to five years in prison: the upper term of three years for the first count of check forgery and consecutive eight-month terms (one-third the middle term) for each of the three remaining counts.

On appeal, defendant argues that he is entitled to resentencing because: (1) imposition of the upper term based on his parole status - a factor neither admitted by defendant nor found by a jury - violated his Sixth Amendment rights; (2) absent a jury finding that two of the check forgery counts involved different objectives, the court should have stayed the sentences under section 654; and (3) he did not waive or forfeit the question of his right to jury trial on his parole status or the question whether he had different objectives when he forged the checks over a period of several days. We conclude there was no sentencing error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[3]

Case No. NCR70437:

Defendant and his wife married in May 2006 and separated in August 2006. After defendants wife left, defendant forged and cashed checks totaling $3,224.60 on her closed bank account. The information charged defendant with check forgery in counts I through IX and burglary ( 459) in counts X through XVII, and alleged that the offenses occurred between August 21, 2006, and September 5, 2006. The information also alleged that defendant had a prior felony conviction within the meaning of section 667.5, subdivision (b).

Case No. NCR70493:

On September 8, 2006, defendant attempted to cash a check drawn on another persons bank account. He left the bank before the teller could confirm its authenticity. When contacted by the bank, defendant said he found the checks when he moved into a new apartment. Defendant decided to cash one because he was in financial trouble. The attempt to cash a forged check resulted in defendants arrest for violation of parole.

The information charged defendant with burglary in count I and with possession of blank checks with the intent to defraud in count II. The information also included the special allegation that defendant had a prior felony conviction.

The Plea Agreement:

The plea agreement resolved both cases. Defendant acknowledged that he understood that by pleading guilty, he waived the right to jury trial and that the court would determine his sentence. Defendant signed and initialed that he understood that the maximum sentence for the offense(s) to which [he was] pleading guilty [was]: 5 years state prison. At the change of plea hearing, the court expressly advised defendant, [B]etween all of the convictions you could be committed to State Prison for five years. Do you understand that? Defendant responded, Yes.

Prior Record:

The probation report stated that defendant had been sentenced to two years in prison for forgery in August 2005. He returned to prison on September 11, 2006, for violation of parole.

The Sentencing Hearing:

The court sentenced defendant on April 16, 2007. It rejected a recommendation of probation. The court acknowledged that defendant was asking for an opportunity to prove himself, and continued: Thats what parole was for. That was the opportunity to prove himself on parole. And instead of proving himself, he committed four more forgeries, and now faces sentencing for those forgeries.

In support of the upper term imposed in the first count of check forgery, the court cited the aggravating factor that defendant was on parole at the time he committed the offense. (Cal. Rules of Court, rule 4.421(b)(4).) The court also expressly found that defendant committed each of the remaining offenses at a separate time and place and made the sentences consecutive for an aggregate term of five years.

DISCUSSION

I.

The Cunningham Claim

Citing Cunningham v. California (2007) 549 U.S. 270, ___ [166 L.Ed.2d 856, 864] (Cunningham) and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), defendant contends that the court violated his Sixth Amendment rights by sentencing him to the upper term without submitting the facts that exposed him to the increased penalty to a jury for proof beyond a reasonable doubt. He maintains that the sole basis for the upper term sentence was the trial courts own factual finding that [he] was on parole at the time he committed the offenses in NCR70437. Defendant acknowledges the prior conviction exception (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 864]; Apprendi, supra, 466 U.S. at p. 490; People v. Black (2007) 41 Cal.4th 799, 818 (Black II)), but argues that it does not encompass defendants parole status.

We begin by rejecting the Attorney Generals claim that because defendant entered a plea of guilty, he was required to obtain a certificate of probable cause in order to raise a Cunningham challenge on appeal. The California Supreme Court recently held that a certificate of probable cause is not required under section 1237.5, because a Cunningham claim does not attack the validity of the plea within the meaning of California Rules of Court, rule 8.304(b)(4)(B). (People v. French (2008) 43 Cal.4th 36, 44-45.)

We also reject the merits of defendants argument. California courts have interpreted the prior conviction exception . . . to encompass more than just the conviction itself. As recognized by the California Supreme Court, the exception has been construed broadly to apply not only to the fact of a prior conviction but also other related issues that may be determined from an examination of court records. [Citations.] (People v. Abercrombie (2008) 161 Cal.App.4th 68, 74-75 (Abercrombie).) Because a parolees status can be established by judicial review of court records, it qualifies under the recidivism exception. (Id. at p. 75; People v. Yim (2007) 152 Cal.App.4th 366, 371.) An examination of records pertaining to defendants prior convictions, sentences and paroles involves the type of inquiry that judges traditionally perform as part of the sentencing function. [Citation.] (Abercrombie, supra, at p. 75.)

Defendant argues that information regarding his parole status is found only in nonjudicial records since it is the California Department of Corrections and Rehabilitation (CDCR), not the court, which determines when a prisoner is released on parole. Defendant misconstrues the fact to be proved. It is true that the CDCR determines the date that parole begins. However, to determine whether defendant was on parole when the crime was committed (Cal. Rules of Court, rule 4.421(b)(4)), the court looks to the parole status in relation to the date the new offense occurred. Here, the probation report reveals that defendant was convicted of forgery on August 18, 2005, and sentenced to two years in prison. He was arrested for a parole violation after he attempted to cash a forged check on September 8, 2006. From this record, the court could reasonably infer that defendant was on parole when he committed the offenses in case Nos. NCR70437 and NCR70493.

II.

Cunningham and Section 654

Next, defendant contends that the core principle established in the Apprendi/Cunningham line of cases required that a jury, not the court, determine whether the subordinate offenses were committed with a different objective from the principal offense. There is no merit in this contention.

Citing People v. Hester (2000) 22 Cal.4th 290, 295 (Hester), the Attorney General maintains that by agreeing to a maximum sentence of five years, defendant waived the section 654 issue. Defendant properly distinguishes Hester. In that case, the defendant agreed to a specified sentence in return for his guilty plea. (Hester, supra, at pp. 295-296.) Here, defendant merely acknowledged the courts advisement of the maximum sentence. Defendant remained free to argue for a lesser sentence.

However, defendants argument fails on the merits. [S]ection 654 does not run afoul of the rule announced in Apprendi. The question of whether section 654 operates to stay a particular sentence does not involve the determination of any fact that could increase the penalty for a crime beyond the prescribed statutory maximum for the underlying crime. . . . (People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022, quoting People v. Cleveland (2001) 87 Cal.App.4th 263, 266; see also Black II, supra, 41 Cal.4th at pp. 820-823 [Apprendi/Cunnginham inapplicable to determination of concurrent and consecutive sentences under section 669].)

III.

Scope of Waiver of Right To Jury Trial

Defendant also argues that [b]ecause the issue was never raised at the change-of-plea or sentencing hearings, the People cannot demonstrate that [defendant] knowingly, intelligently, and voluntarily waived his right to have a jury determine whether (a) he was on parole at the time of the principal offense or (b) he had multiple objectives in cashing his wifes checks. He also maintains that he has not forfeited the Apprendi issues on appeal, noting that no procedure exists to obtain a jury finding on these issues in the context of a plea agreement and raising the issue below would have been futile.

We have addressed the merits of defendants Apprendi/Cunningham claims to forestall a later claim of ineffective assistance of counsel. We need not reach the question whether defendant, in fact, waived or forfeited the Sixth Amendment issues by failing to object at the change-of-plea or sentencing hearings.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND, P.J.

DAVIS , J.

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^[1]Undesignated statutory references are to the Penal Code.

^[2]People v. Harvey (1979) 25 Cal.3d 754.

^[3]Because defendant waived a preliminary hearing, we take the underlying facts from the probation report.