P. v. Shea

Filed 11/21/07 P. v. Shea CA1/2

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Paul Eric Shea appeals from the 10 year 4 month state prison sentence he received after entering a plea of guilty, with a Harvey waiver,[1] to four felonies and one misdemeanor charge. In his opening brief on appeal, appellant claims sentencing error in that the trial court failed to articulate reasons for sentencing appellant to an aggravated term as the principal term (child endangerment, Pen. Code,  273a, subd. (a))[2],and for ordering him to submit to involuntary AIDS testing without probable cause. After appellants opening brief was filed, leave was granted allowing him to submit a supplemental brief on the question of whether his aggravated sentence should be vacated in light of the United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Respondent addressed this issue in its brief, as well as responding to those issues raised in appellants opening brief.

On January 11, 2005, we filed an unpublished opinion which concluded that the two sentencing errors addressed in appellants opening brief had been waived because no objection was made below either to the courts articulation of reasons for its sentencing choices, or to the imposition of involuntary AIDS testing. (People v. Davis (1995) 10 Cal.4th 463, 551-552; People v. Scott (1994) 9 Cal.4th 331, 353.) However, we also concluded that appellants sentence did violate Blakely, and remanded for resentencing. (People v. Shea (Jan. 11, 2005, A105299) [nopub. opn.] (Shea I).)

A petition to the California Supreme Court was subsequently granted, and on September 7, 2005, an order was issued by the Supreme Court transferring the matter to this court with directions to vacate our prior decision, and to reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238 (Black I), in which that court held there is no constitutional right to a jury trial or proof beyond a reasonable doubt on aggravating factors.

On October 25, 2005, we issued our second opinion in this case, in which we vacated our earlier opinion and, following Black I, rejected appellants Blakely claim. (People v. Shea (Oct. 25, 2005, A105299) [nonpub. opn.] (Shea II).)

On February 20, 2007, the United States Supreme Court issued an order granting certiorari, vacating the judgment, and remanding to us for consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). (Shea v. California (2007) ___ U.S. ___ [127 S.Ct. 1217].)

On May 21, 2007, we issued an order recalling our remittitur in Shea II.

On July 19, 2007, our Supreme Court issued decisions in People v. Black (2007) 41 Cal.4th 799 (BlackII), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We provided the parties the opportunity to file letter briefs discussing the impact of these decisions to this appeal, which we have received, and we have examined the issue once more. Again we conclude that appellants Blakely-Cunningham-Black II claim has merit, and because we cannot conclude that the error was harmless beyond a reasonable doubt, we remand to the trial court with direction to reconsider appellants sentence.

Background

A criminal complaint was filed by the Marin County District Attorney on or about July 15, 2003, charging appellant with 13 counts: five counts of violation of Health and Safety Code section 11380, subdivision (a) (solicitation of a minor to use or sell a controlled substance), five counts of violation of section 273a, subdivision (a) (child endangerment), and three counts of violation of section 288, subdivision (c)(1) (lewd act upon a child). Thereafter, a six count 1st Amended Complaint (FAC) was filed on August 21, 2003, charging appellant with violation of three counts of section 273a, subdivision (a) (child endangerment), one count of Health and Safety Code section 11379, subdivision (a) (furnishing a controlled substance), one count of section 288, subdivision (c)(1) (lewd act upon a child), and a misdemeanor count of section 647.6, subdivision (a) (child molestation).

On August 28, 2003, appellant waived a preliminary hearing and entered a guilty plea to the FAC, with a Harveywaiver. In so doing, appellant acknowledged that he could be sentenced to state prison for up to 10 years 4 months. These and other constitutional rights were knowingly and voluntarily waived by appellant at the time his plea was taken. Sentencing was set for November 21, 2003.

Prior to sentencing, the court ordered and received a report from the county probation department. As to the circumstances that led to the charges against appellant, the report explained that appellant and his young son had moved into the home of appellants sister and her 14-year-old daughter (appellants niece) in May or June 2003. While living there, appellant induced his niece to begin taking methamphetamine through injections appellant administered to her. This drug use continued on a daily basis for approximately one month, until appellants sister told him to move out of the home. During the time he resided in his sisters home, appellant also touched his nieces breasts.

After being told to leave, appellant took up residence at the Fireside Motel in Mill Valley. While there he continued to see his niece on a daily basis. The niece told her mother that she was going to the motel to baby-sit her younger cousin (appellants son). However, during these visits, she continued to use methamphetamine with appellant. On several occasions he also fondled her breasts and digitally penetrated her vagina.

The probation report noted that appellant had no prior criminal record. Nevertheless, the report recommended that appellant be denied probation, and that he be sentenced to consecutive midterms (no aggravated terms) for a total aggregate prison term of eight years four months.

Also, prior to sentencing, the court received a pleading from appellant denominated Sentencing Materials, which included a report of Jules Burstein, Ph.D., an investigators report of an interview of Emerald Becker, and various letters including those from appellants family members and his former employer. Supplemental sentencing materials in the form of a Client Social Evaluation and Recommendation by Suzanne Dowling, M.S.W. was also submitted by appellant before sentencing. Ms. Dowlings lengthy report ended with a recommendation that appellant be placed on probation and undergo residential drug rehabilitation, and treatment for his sexual misconduct.

At sentencing, the court heard testimony from the nieces father. The nieces mother both testified and read into the record a letter to the court form her 19-year-old son (the nieces brother), who was in Cambodia. Following argument, the court provided the following comments, which appear to be specifically related to the sentencing factors gleaned from the various reports and letters received, and from the testimony underlying its sentencing choices:

Clearly, [appellant] is not an appropriate candidate for probation. This is behavior of the most despicable kind imaginable. Probably if you compare it honestly and carefully with behavior of other people, its worse than the behavior of a lot of people who end up committed to prison for homicide.

Its just awful behavior, and Im not even, after having read everything Ive read and heard everything Ive heard, in agreement that the abuse of the child grows out of methamphetamine addiction, as [the prosecutor] points out. There are other causes, but Ive seen an awful lot of methamphetamine addicts, and not very many of them inject methamphetamine into kids.

So probation is clearly not an appropriate course at this time, and with respect to [c]ount 1, which I find to be the principal term here, the crime is such an appalling, invasive, and predatory crime, that clearly the upper term is the only appropriate term, and the [c]ourt so finds.

The court went on to add consecutive terms (calculated at one-third the mid-term) for each of the remaining four felony counts to which appellant pleaded guilty. A sentence of 199 days in county jail for the single misdemeanor court was offset by appellants custody credits calculated in that amount. Therefore, a total aggregate state prison term of 10 years 4 months was imposed.

This timely appeal followed.

Discussion

I.

As noted, appellants opening brief cited as its first of two sentencing errors the failure of the sentencing judge to articulate proper factors justifying the imposition of the upper state prison term as to the principal term selected (child endangerment). Without question, applicable law require trial courts to make such findings justifying the imposition of an imposed aggravated, or upper, prison term. ( 1170, subd. (c); Cal. Rules of Court, rules 4.406(a) & 4.420(e)[3]; People v. Fernandez (1990) 226 Cal.App.3d 669, 678.)

However, it is also without question that claims of error of this type must be preserved by a timely objection in the trial court. (People v. Davis, supra, 10 Cal.4th at pp. 551-552; People v. Scott, supra, 9 Cal.4th at pp. 352-353.) No objections of any kind were made by appellants counsel at the sentencing to the courts imposition of sentence, and therefore, this claim has been waived and will not be entertained for the first time on appeal.

The same is so for appellants second assignment of error. No objection was made to the imposition of mandatory AIDS testing as part of the sentence. Thus, this claim of error is likewise deemed waived.

II.

In his supplemental brief, appellant also claims that his sentence must be vacated because the imposition of the aggravated term for the principal term selected was based on factors for which a jury trial is required under the United States Supreme Court decision in Blakely, supra, 542 U.S. 296.

In Blakely,the Supreme Court held that a Washington State court denied a criminal defendant his constitutional right to a jury trial by increasing the defendants sentence for second-degree kidnapping from the standard range of 49 to 53 months to 90 months based on the trial courts finding that the defendant acted with  deliberate cruelty.  (Blakely, supra, 542 U.S. at p. 303.) The Blakely court found that the state court violated the rule previously announced in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) 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.  (Blakely,supra, at p. 301.) In reaching this conclusion, the court clarified that, for Apprendi purposes, the statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Blakely, at pp. 303-304.)

We reject respondents contention that appellant forfeited his right to claim Blakely error by failing to raise this issue in the trial court. It would be difficult to invoke the forfeiture doctrine here in light of the fact that Blakely was decided after appellant was sentenced. Additional analysis is unnecessary in light of our Supreme Courts recent holding that forfeiture would not be found in identical circumstances. (Black II, supra, 41 Cal.4th at pp. 810-812.)

We similarly reject respondents belated claim that we need not reach the issue because defendant did not obtain a certificate of probable cause as required by section 1237. Respondent presents no explanation why this argument was not raised earlier. In any event, it exceeds the scope of our order allowing supplemental briefing addressing the impact . . . if any of Black II and Sandoval.

In Cunningham, the United States Supreme Court summarized Californias determinate sentencing law (DSL), and how it fit within the right-to-jury decisions that began with Apprendi, supra, 530 U.S. 466 and culminated with Blakely: Under Californias DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. . . . [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Citation.] 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 Apprendis bright-line rule: 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].) [O]ur decisions from Apprendi . . . point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Id. at p. ___ [127 S.Ct at p. 871].)

As Black II summarized: [U]nder the line of high court decisions beginning with Apprendi . . . and culminating in Cunningham, . . . the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is legally essential to the punishment (Blakely, supra, 542U.S. at p. 313), that is, to any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 863]). . . . For this reason, we agree with the Attorney Generals contention that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence . . . does not violate the defendants right to jury trial regardless of whether the facts underlying those circumstances have been found to be true by a jury. Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black II, supra, 41 Cal.4th at pp. 812-813.)

In Sandoval, the court held: The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. ([Blakely,] at p. 301; see Apprendi, supra, 530 U.S. at p. 490 . . . .) (Sandoval, supra, 41 Cal.4th at pp. 836-837.)

Neither of these exceptions is present here. Appellant had no criminal record, so there was no question of a prior conviction. None of the charges to which appellant pleaded guilty contained any special component or allegation that could serve as the required single aggravating factor established consistently with Sixth Amendment principles.[4] (Black II, supra, 41 Cal.4th at p. 813.) Thus, there is no aggravating factor that made appellant eligible for imposition of the upper term. (Id. at p. 812.)

Sandoval held that error of this nature is subject to the harmless error test of Chapman v. California (1967) 386 U.S. 18. Within the context of Sandoval, where there had been a jury trial, the court framed the appropriate analysis as follows: [W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. . . . [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, supra, 41 Cal.4th at pp. 838-839.)

Our ability to undertake this analysis is hindered by the trial courts abbreviated statement of reasons for imposing the aggravated term. The court stated that here, the crime is such an appalling, invasive, and predatory crime, that clearly the upper term is the only appropriate term. The difficulty is that this statement is not couched in the language of the sentencing rule-guidelines, thus opening up a large measure of speculation. It is possible to interpret the courts characterization of the offense as including findings that the crimes involved a high degree of cruelty, viciousness, or callousness (rule 4.421(a)(1)); the victim was particularly vulnerable (rule 4.421(a)(3)); and appellant took advantage of a position of trust or confidence to commit the crimes (rule 4.421(a)(11)).[5]

This very uncertainty works against finding the error harmless. Because it is not possible to know precisely what factors the court treated as aggravating, it is virtually impossible to know with what lens the record is to be examined, that is, whether the record will support those factors. An additional difficulty here is the extremely scanty nature of the factual record. Appellant entered his pleas of guilty after waiving his right to a preliminary examination. Thus, the record, such as it is, consists in its entirety of the probation officers report and the sentencing materials previously described. That is hardly the sort of evidentiary basis for making a confident determination that federal constitutional error is harmless beyond a reasonable doubt.

Disposition

Our prior opinion in Shea II is hereby vacated. The matter is remanded for resentencing in light of Blakely, Cunningham, and the views expressed herein. Following resentencing, the clerk of the superior court is directed to prepare an amended abstract of judgment, and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.

_________________________

Richman, J.

We concur:

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Kline, P. J.

_________________________

Haerle, J.

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

[2] All further statutory references are to the Penal Code unless otherwise stated.

[3] All further rule references are to the California Rules of Court.

[4] We reject respondents argument that the Blakely standard was satisfied by appellants stipulation that there existed factual bases for his guilty plea. In so doing, we point out that appellants stipulation merely encompassed the elements of the respective charges, and not the factors set out in rule 4.421(a), apparently used to aggravate his sentence.

[5]These were among the factors that were discussedand disputedby counsel prior to the courts imposition of sentence.