P. v. Sieber

Filed 10/18/07 P. v. Sieber CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Janice M. McIntyre, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Charles R. Khoury, Jr., under appointment by the Court of Appeal, and Peter B. Clarke, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, Scott C. Taylor and James Flaherty, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant pleaded guilty to child endangerment (Pen. Code, 273a, subd. (a))^[1]with a possible maximum term of six years in state prison. Following a sentencing hearing, defendant was sentenced to the upper term of six years in state prison. On appeal, defendant contends (1) she was deprived of her federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868] (Cunningham), 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 court imposed the upper term; and (2) the trial court engaged in an improper dual use of facts by imposing the upper term based on the victims vulnerability. We agree, as we must, that defendants upper term sentence runs afoul of Cunningham; however, we find that the error was harmless beyond a reasonable doubt. In addition, we reject defendants claim that the court engaged in an improper dual use of facts.

I

FACTUAL BACKGROUND^[2]

Defendant was a dancer at a topless bar in Colton. One night while dancing, she met Alex Mendoza and became involved in a relationship with him. Shortly thereafter, defendant and her three-year-old son Michael moved in with Mendoza, his roommate, and his 87-year-old father. Defendant agreed to care for Mendozas father during the day, and Mendoza agreed to care for Michael at night while defendant was at work.

The relationship between defendant and Mendoza lasted about three weeks. Nonetheless, during this short period, Mendoza repeatedly abused and tortured Michael, resulting in Michaels death. Among other things, Mendozas abuse of Michael consisted of repeatedly punching and kicking Michael in the head, stomach, and back; standing on Michaels chest until Michael gasped for air; picking Michael up and slamming him down on a cement floor; spinning Michael around in circles until he threw up; holding Michael upside down by his feet and then dropping him on his head; forcing Michael to eat his own feces and drink his own urine and vodka; and burning Michaels feet, buttocks, and penis with a lighter. Mendozas roommate also hit Michael several times.

Early in the morning of August 28, 2005, when defendant went to Michaels bedroom, she saw him lying on the floor. He was convulsing and not breathing, his face was pale, his lips were blue, and he was cold to touch. Defendant and Mendoza took Michael to the hospital; he died shortly thereafter. Michael was diagnosed as having a fractured skull, liver lacerations, pancreatic injuries, a torn rectum, abdominal injuries, severe bruising, a fractured rib, and burns on his right foot.

Defendant had witnessed Mendoza spank Michael. She also had seen Mendoza hit Michael on the back of his head; on another occasion, she had seen Mendoza slap Michael hard on his face. A week prior to Michaels death, she noticed a large bruise over Michaels right eye, and on another occasion she observed several tiny bruises on Michaels chin, knees, and chest. In addition, Michael would cry when defendant left him with Mendoza and asked to be taken to his grandparents house. The probation report also notes that when defendant asked her neighbor about two weeks prior to Michaels death for advice concerning Michael being afraid of Mendoza and seeing a bruise on Michaels head, which she believed Mendoza caused, the neighbor advised defendant to leave Mendoza.

II

DISCUSSION

A. Cunningham/Blakely/Apprendi

Defendant pleaded to the sheet. She pleaded guilty to the sole charge of child endangerment ( 273a, subd. (a)) as alleged in the complaint and agreed she could serve anywhere from no time in custody to up to six years in the state prison.^[3] Following a sentencing hearing, the trial court imposed the upper term of six years, finding the victim was particularly vulnerable. The court also noted, This is not a dual use of facts. This is for a different purpose.

Defendant contends the imposition of the aggravated term without jury findings on circumstances in aggravation violated the federal constitutional guarantees of jury trial and proof beyond a reasonable doubt pursuant to Cunningham, supra, 127 S.Ct. 856, Blakely, supra,542 U.S. 296, and Apprendi, supra,530 U.S. 466.

The People first respond that this appeal must be dismissed because defendant failed to obtain a certificate of probable cause. We disagree. While defendants who enter guilty pleas 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 California Rules of Court, rule 8.304(b)(4)(B)^[4][certificate of probable cause not required for grounds that arose after entry of the plea and do not affect the pleas 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, 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.)

In People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon), the Supreme Court held that, where a defendant is sentenced in accordance with the terms of a plea bargain that provides for a specified sentence and then attempts to challenge that sentence on appeal, he or she must secure a certificate of probable cause. The court explained that since the defendant is in fact challenging the very sentence to which he agreed as part of the plea, the challenge attacks an integral part of the plea [and] is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5 and [former] rule 31(d) [now rule 8.320(d)]. (Id. at p. 73.)

Here, defendant did not agree to a specified prison term as part of her plea bargain. In fact, her plea cannot even be characterized as a plea agreement. Defendant merely pleaded to the sheet to the court without obtaining any benefit. She pleaded guilty to the sole count of child endangerment with the understanding that she could receive no time in custody to up to six years in the state prison,^[5]and there is no indication the prosecutor agreed to the alleged agreement.^[6] The Peoples reliance on People v. Shelton (2006) 37 Cal.4th 759 and People v. Bobbit (2006) 138 Cal.App.4th 445 is therefore unavailing.^[7]

As explained in Buttram: Unless it specifies otherwise, a plea agreement providing for a maximum sentence inherently reserves the parties right to a sentencing proceeding in which (1) as occurred here, they may litigate the appropriate individualized sentence choice within the constraints of the bargain and the courts lawful discretion, and (2) appellate challenges otherwise available against the courts exercise of that discretion are retained. An appellate challenge to the exercise of the discretion reserved under the bargain is therefore a postplea sentencing matter extraneous to the plea agreement. Such a claim may rarely have merit, but it does not attack the validity of the plea. For that reason, a probable cause certificate is not required. (Buttram, supra, 30 Cal.4th at p. 777.)

We also reject the Peoples claim that defendant waived her right to have a jury determine the factors in aggravation as part of her plea agreement. First, as noted above, the plea agreement was essentially illusory, and there was no agreement between defendant and the prosecutor or, for that matter, between defendant and the court. By pleading guilty to the sheet, she was not receiving any benefit. In other words, if defendant had gone to trial, she would have been facing the same sentence exposure. Second, defendant, in her change of plea form, did not circle any portion of paragraph C, number 5, which provides, As part of this plea, I (circle one) do / do not waive any right to appeal that I may have.

We further reject the Peoples claim that defendant forfeited her Blakely/Cunningham claim by failing to object at the sentencing hearing. On June 20, 2005, over a year before defendants sentencing hearing in this case, our state Supreme Court concluded that the imposition of an upper term sentence, as provided under California law, was constitutional and does not implicate a defendants Sixth Amendment right to a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1244 (BlackI).) At that time, the trial court was compelled to follow Black I. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, it would have been futile for defense counsel to object at sentencing based on Blakely, Apprendi, or the United States Constitution. (See People v. Welch (1993) 5 Cal.4th 228, 237-238.) For this reason, defendant is excused from failing to raise the Blakely/Cunningham issue in the trial court at the time she was sentenced.

In Cunningham, the United States Supreme Court overruled Black and held that the middle term in Californias determinate sentencing law (DSL) was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, supra,127 S.Ct. at p. 868.) The court noted that Californias DSL, by placing sentence-elevating factfinding within the trial judges province, violates a criminal defendants right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, 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 and 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.)

Our Supreme Court recently decided People v. Black (2007) 41 Cal.4th 799 (Black II ) following the United States Supreme Courts remand of Black I for reconsideration in light of Cunningham. In Black II, the court recognized that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (See 1170, subd. (b); Black II, at p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.) Accordingly, the court in Black II held that a trial courts finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, at p. 812.)^[8] [A]ny additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Ibid.)

The court in Black II explained, Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in Californias current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial courts exercise of its discretion in selecting the appropriate term from among those authorized for the defendants offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows 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 II, supra, 41 Cal.4th at pp. 815-816, italics added.)

Here, there are no factors in aggravation that satisfy the Sixth Amendment requirements. As an aggravating factor, the court found that the victim was particularly vulnerable. However, this aggravating factor was not established by the jurys verdict or admitted by defendant, and defendant has no record of prior convictions. Hence, defendants plea limited the permissible sentence on the offense of child endangerment to the middle term of four years. (See Cunningham, supra, 127 S.Ct. at p. 860.) Thus, here, there are no factors in aggravation that render defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at pp. 812-813, 815-816.) It follows that the trial courts imposition of the upper term of six years violated defendants Sixth Amendment right to a jury trial. We next consider whether this federal constitutional error is harmless beyond a reasonable doubt.

In People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval), our Supreme Court recognized that the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. (See also Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2553, 165 L.Ed.2d 466].) The question the reviewing court must determine is whether the jury would have authorized the upper term sentence if the question of the existence of an aggravating circumstance or circumstances would have been submitted to them. [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Sandoval, at p. 839.)

In this case it is undisputed that the victim of the child endangerment charge was defendants three-year-old son. Unlike other children who are victims of abuse or endangerment, a toddler is entirely dependent on others to fulfill his basic needs for food, clothing, and shelter and is equally unable to escape or evade acts of abuse or endangerment, whether those acts are intentional or the result of negligence. In addition, defendant isolated her toddler son by leaving him in the supervision and control of a man she barely knew, having only recently met him while dancing at a topless bar. Furthermore, even though she witnessed this man spank and slap her very young son several times, as well as witness numerous bruises on her sons body, defendant continued to allow this man to watch and supervise the little boy while she worked at night. We are persuaded, beyond a reasonable doubt, that a jury presented with the issue would have found, also beyond a reasonable doubt, that defendants toddler son was particularly vulnerable, a finding that in turn warrants the upper term sentence the trial court imposed on defendants felony child endangerment conviction. The record does reflect such a clear‑cut instance of victim vulnerability that we confidently can conclude the jury would have made the same findings, as might be the case if, for example, the victims had been elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable. (Sandoval, supra, 41 Cal.4th at p. 842, italics added.) Therefore, the error was harmless beyond a reasonable doubt. (Id. at p. 839.)

B. Dual Use of Facts

We also reject defendants claim that the trial court engaged in an improper dual use of facts by imposing the upper term based on the victims vulnerability. Initially, we note defendant waived this issue by failing to object below. (People v. De Soto (1997) 54 Cal.App.4th 1, 7-8.) In any event, we reject defendants claim.

We agree that [a] circumstance which is an element of the substantive offense cannot be used as a factor in aggravation. [Citation.] (People v. Clark (1992) 12 Cal.App.4th 663, 666.) Thus, aggravating a sentence due to particular vulnerability, where vulnerability is based solely on age, is improper when age is an element of the offense. [Citations.] (People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694, overruled on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)

However, a victims extremely young age together with other circumstances like the time and location of the offense can establish particular vulnerability as an aggravating factor. (People v. Dancer, supra, 45 Cal.App.4th at p. 1694.) [P]articular vulnerability is determined in light of the total milieu in which the commission of the crime occurred  . . . . [Citation.] (Ibid.) Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, or susceptible to a defendants criminal act. (People v. Smith (1979) 94 Cal.App.3d 433, 436.)

Here, the victim was vulnerable not only because of his extremely young age but also because he was readily accessible to defendants boyfriend, with whom he and his mother lived. In addition, as noted above, due to his tender age the victim was defenseless and powerless to resist or report defendants boyfriends conduct, as well as defendants gross negligence in leaving him alone with this man. Defendants isolation of her son in the care and control of an abusive man left him unprotected. In addition, the extremely abusive conduct toward defendants son took place inside their home, outside the view of the public, and much of it took place late at night in the victims bedroom while defendant worked. When the victim asked not to be left with this man, defendant ignored his pleas. Moreover, despite the victims visible injuries, defendant continued to leave him in the care of this abusive man. Indeed, the courts acknowledgement that the vulnerability finding was not based on a dual use of facts shows that the court considered several factors apart from the victims age in finding that the victim was particularly vulnerable. We find on this record that there is no prohibition against consideration of this circumstance as an aggravating factor when imposing an upper term sentence on defendants conviction for child endangerment. Defendant has failed to demonstrate that the victims age alone was used both to establish the offense and to aggravate her sentence.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

McKINSTER

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] The factual background is taken from the probation officers report contained in the supplemental clerks transcript.

^[3] Defendant and Mendoza were charged together in a single complaint. Counts 1 through 3 pertained to Mendoza; only count 4 pertained to defendant.

^[4] All references to the rules are to the California Rules of Court.

^[5] The sentencing range for child endangerment is county jail not exceeding one year, or in state prison for two, four, or six years. ( 273a, subd. (a).)

^[6] The plea form was not signed by the prosecutor.

^[7] In Shelton our Supreme Court held that the specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (People v. Shelton, supra, 37 Cal.4th at p. 768.)

In Bobbit, a case decided prior to the Cunningham decision, inexchange for dismissal of other charges and enhancements and a sentencing lid of 12 years 8 months, the defendant pleaded no contest to one count of sale of cocaine and one count of offering to sell cocaine and admitted that he had suffered a prior serious felony conviction. (People v. Bobbit, supra, 138 Cal.App.4th at p. 447.) The defendant appealed after he was sentenced to the maximum term permitted under his pleaagreement. (Ibid.) The plea agreement failed to preserve, either at sentencing or for appeal, the issue that the trial court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more of the aggravating circumstances. (Id. at p. 448.) The defendant, however, had failed to obtain a certificate of probable cause. (Id. at p. 447.) The court concluded: On this record, we conclude as a matter of law that the plea agreement did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s). Without a certificate of probable cause, the appeal must be dismissed. (Id. at p. 448, fn. omitted.)

^[8] An aggravating circumstance is one that makes the offense distinctively worse than the ordinary. [Citations.] (Black II, supra, 41 Cal.4th at p. 817.) Accordingly, aggravating circumstances include not only those listed in rule 4.421, but also [a]ny other facts statutorily declared to be circumstances in aggravation, (rule 4.421(c)) and any other facts reasonably related to the decision being made (rule 4.408(a)).