P. v. Munoz
Filed 4/13/09 P. v. Munoz CA3
Opinion following remand from U.S. Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----
THE PEOPLE, Plaintiff and Respondent, v. JOSE REMEDIOS MUNOZ, Defendant and Appellant. | C051774 (Super. Ct. No. 04F05627) OPINION ON REMAND |
Defendant Jose Munoz entered a plea of no contest to one count of kidnapping in violation of Penal Code section 207, subdivision (a).[1] All remaining counts were dismissed subject to a Harvey[2]waiver. The trial court sentenced him to the upper term of eight years.
Defendant appealed, asserting that imposition of the upper term violated his Sixth Amendment rights as interpreted in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Bound by the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), we rejected that contention. (People v. Munoz (Nov. 8, 2006, C051774 [nonpub. opn.].)
The United States Supreme Court vacated this courts November 8, 2006, opinion following its decision in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) and we have received supplemental briefing.
Defendant reasserts his contention that his sentence violates the mandates of Blakely, supra, 542 U.S. 296. We shall affirm the judgment.
Facts and Procedural History
Given the absence of a preliminary hearing in this case, the facts are gleaned from the report of the probation officer.
On June 6, 2004, Sacramento City Police Department officers responded to a call regarding a disturbance involving gang activity at a residence. When the officers arrived, victims and witnesses reported that the defendant (described as a validated Norteo gang member)[3] interrupted a barbeque, confronting one of the victims, Esquiel Delgado, and ordered him to remove his shoes and belt because the color blue was not tolerated in that neighborhood. Defendant reportedly called Delgado a scrap, a derogatory term for a Sureo gang member, and threatened to kill him if he did not remove his shoes and belt. One of the victims reported seeing a gun in defendants waistband.
Delgado, afraid for his life, ran out the front door toward his vehicle. Defendant chased Delgado and smashed the windshield of his car. Defendant then went back into the house and threatened a second victim, Casey Williams, telling her that two other women would beat her ass if she did not show him where Delgado lived. Also fearing for her life, Williams rode in defendants vehicle and showed him where Delgado lived.
Once at Delgados residence, defendant was interrupted by another individual. However, prior to leaving, defendant took some jewelry and a cell phone from Williams and threatened to harm her if she called the police.
Defendant was arrested on June 22, 2004, and charged with one count of second degree armed robbery of Delgado ( 211, 12022, subd. (a)(1)--count one), making criminal threats against Delgado ( 422--count two), kidnapping of Williams ( 207, subd. (a)--count three), second degree robbery of Williams ( 211--count four), and witness intimidation ( 136.1, subd. (c)(1), (c)(2)--count five). Counts one-five also alleged gang enhancements ( 186.22, subd. (b)(1); count two also alleged a firearm enhancement; and counts one, three and four were charged as serious felonies ( 1192.7, subd. (c)).
Defendant pleaded no contest to count three, agreeing to a maximum exposure of eight years, with the remaining counts to be dismissed with a Harvey waiver. The court found defendant guilty and sentenced him to the upper term of eight years, finding as follows: The nature of the crime, the viciousness, the threats of great bodily injury all make this an aggravated offense for which the upper term is appropriate. Defendant filed a timely notice of appeal.
Discussion
I
Imposition of the Upper Term
Defendant claims that Blakely invalidates the statutory method used by California trial judges to impose upper term and consecutive sentences, thereby invalidating his sentence.
In Cunningham, the United States Supreme Court applied Blakely to Californias Determinate Sentencing Law (DSL) and held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias DSL violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. at p. 274.)
Applying Cunningham, our Supreme Court held in People v. Black (2007) 41 Cal.4th 799 (Black II) that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black, supra, at p. 816.)
Notwithstanding that, the Supreme Court expressly recognized in Blakely that a defendant entering into a plea agreement may waive his right to a jury trial on additional facts used to impose an enhanced sentence where that defendant either stipulates to the relevant facts or consents to judicial factfinding. [Citations.] (Blakely, supra, 542 U.S. at p. 310.)
When defendant entered his no-contest plea, he stipulated to the factual basis and stipulated, via the Harvey waiver, that the court could consider all dismissed charges. A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted. [Citation.] (People v. Munoz (2007) 155 Cal.App.4th 160, 167.) Here, defendant expressly waived his right to have facts used by the trial court to aggravate his sentence decided by a jury. The dismissed charges subject to the Harvey waiver included second degree robbery of both victims, criminal threats against Delgado, and witness intimidation, all of which were directly related to the crime of kidnapping to which defendant pleaded no contest. Facts related to those charges--e.g., defendant had a gun in his waistband; he threatened bodily harm to Williams if she did not show him where Delgado lived; after robbing Williams, he threatened to harm her if she called the police--are sufficient to support an aggravating circumstance under rule 4.421(a)(1) and (2) of the California Rules of Court. Having specifically agreed that the trial court could consider those facts for purposes of aggravating his sentence, defendant cannot now complain of error under Blakely.
II
Ineffective Assistance of Counsel
Defendant contends, in the alternative, that if his failure to object to imposition of the upper term precludes review, his counsels failure to appreciate the holding of Blakely constitutes ineffective assistance of counsel. Extended discussion of the issue is not required. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish both that counsels representation fell below an objective standard of reasonableness and that there is a reasonable probability that a determination more favorable to defendant would have resulted but for counsels unprofessional errors. (People v. Kipp (1998) 18 Cal.4th 349, 366; People v. Jackson (1996) 13 Cal.4th 1164, 1217.)
We have already concluded that defendants Blakely argument is without merit. Defense counsel cannot be faulted for declining to bring a motion that lacks merit. (People v. Williams (1997) 16 Cal.4th 635, 681; People v. Cudjo (1993) 6 Cal.4th 585, 616 [failure to object where no sound legal basis exists does not establish ineffective assistance of counsel].) Consequently, we reject defendants claim that his counsel was ineffective.
Disposition
The judgment is affirmed.
DAVIS , J.*
We concur:
BLEASE , Acting P. J.
BUTZ , J.
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[1] Hereafter, undesignated section references are to the Penal Code.
[2]People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
[3] Defendant is in fact a validated member of the Varrio Centro VCS gang.
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
